Bob Casey vs. Religious Freedom

by Ramesh Ponnuru

Jonathan Tamari reports in the Philadelphia Inquirer that Senator Bob Casey (D., Pa.) is joining his party’s efforts to weaken religious-freedom protections — but downplays what Casey is doing.

Sen. Bob Casey, an antiabortion Democrat, plans to vote Wednesday for a bill that would overturn the Supreme Court’s recent Hobby Lobby decision and force most businesses to offer employees the full range of contraceptive coverage, even if the owners raise religious objections.

It is not clear in what sense Casey remains an “anti-abortion Democrat.” He votes the same way as pro-choice Democrats on judicial nominations and subsidies for insurance plans that cover abortions. The bigger problem here is that the bill Casey is planning to vote for does more than reverse the effect of the Hobby Lobby decision.

Obamacare authorized the federal government to require that insurance plans cover preventive health services for women, and the Obama administration decided that a broad range of contraceptives — including some that may act as abortifacients — should be included. Some organizations have objected either to providing this subset of contraceptives or contraceptives in general, and raised legal claims under the Religious Freedom Restoration Act against being forced to do so.

The Senate Democrats’ bill would take away this legal defense, and not only in the case of contraception. The Obama administration could decide next year that surgical abortion should be covered as a preventive health service too, or the Hillary Clinton administration could do so in a few years, without having to amend the text of Obamacare. And the bill Casey is voting for would mean that companies that object to providing surgical abortions would in that case no longer have a legal defense under the Religious Freedom Restoration Act. This bill is all the congressional authorization the administration would need to make the Little Sisters of the Poor cover surgical abortion.

Casey, who is Catholic, said Tuesday in an Inquirer interview that he draws a distinction between abortion – which he still opposes – and contraception, which he has long supported and which he believes can reduce the number of abortions.

“The health-care service that’s at issue here is contraception, which means prior to conception,” Casey said.

The bill for which Casey is voting makes no such distinction, so it is not all that is “at issue here.” At no point in the article does Tamari mention this fact.

Casey on Tuesday became the first antiabortion Democrat to cosponsor the bill, aimed at reversing the Supreme Court decision allowing business owners to exclude certain contraception options from their employee health packages.

Whether or not the bill is in some sense ”aimed at” mandating contraception options, it is written to apply more broadly.

Some business owners said certain types of contraception could amount to abortion, an idea disputed by many doctors and scientists.

“I’m a pro-life Democrat, always have been, always will be,” Casey said. He later added: “I’ll go with the scientists on what contraception is, rather than a religious viewpoint of what science is.”

Physicians for Reproductive Health filed a brief to the Supreme Court acknowledging that some of the disputed contraceptives could act after conception. There is evidence for this possibility. It is true that the organization also claimed that such contraceptives should not be considered abortifacient if they act before implantation — but Casey has himself rejected this argument in this very article, by saying contraception “means prior to conception.” But again, the more important point is that the bill he is voting for does not just involve contraception, however that term is defined. Its terms would force employers to cover abortions that everyone would recognize as abortions.

He also worried about private executives using their religious beliefs to restrict access to other types of health coverage.

This is the familiar argument that Jehovah’s Witnesses in business wouldn’t cover blood transfusions — something they have been allowed to do for generations without incident.

He also stressed that there were still protections in place for religious nonprofits, such as hospitals or private schools, but said those safeguards shouldn’t apply to for-profit businesses.

The bill does not confine itself to for-profit corporations. The “protections” for some religious organizations, the adequacy of which is in dispute, could be abolished by any administration. The bill Casey supports would be no obstacle to that abolition.

In short: Casey’s claims about this bill do not hold up; it is a broader attack on religious freedom than he is saying; it would constitute all the congressional authorization for an abortion mandate with no religious-freedom protections that any administration would need; and his local paper is helping him obscure the issues.

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