In an insult to the intelligence of his readers, Nick Baumann of Mother Jones takes on the old chestnut - when is a law not a law?
Most of Obama's "Controversial" Birth Control Rule Was Law During Bush Years
The right has freaked out over an Obama administration rule requiring employers to offer birth control to their employees. Most companies already had to do that.
Hold on - the "right" (including, of course, many lefties) is freaking out over the religious freedom issue; we aren't hearing from most employers or mainstream corporate America on this.
President Barack Obama's decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.
Despite the longstanding precedent, "no one screamed" until now, said Sara Rosenbaum, a health law expert at George Washington University.
In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don't offer prescription coverage or don't offer insurance at all are exempt, because they treat men and women equally—but under the EEOC's interpretation of the law, you can't offer other preventative care coverage without offering birth control coverage, too.
And when is a law not a law? Let's cut to Times coverage of the EEOC lame-duck announcement (which followed the Bush v. Gore decision):
''It's not binding on the courts, but they will give it deference,'' said Ellen Vargyas, a lawyer at the commission. ''The hope is that employers and employees will look at this and want to comply with the law, that this will be their guide.''
Not binding? The EEOC adopted a non-binding rule which the Bushies basically ignored. The EEOC rule was upheld in one court case (Erickson v. Bartell Drug Co.) and in a different venue rejected by the 8th Circuit Court of Appeals, as described in a Weekly Standard article to which Mr. Baumann links:
Just two years ago (2007), the Eighth U.S. Circuit Court of Appeals in St. Louis, apparently the only federal appellate court to take up these questions directly, answered the employment discrimination question with a no. "While contraception may certainly affect the causal chain that leads to pregnancy, we have specifically rejected the argument that a causal connection, by itself, results in a medical condition 'related to' pregnancy for PDA purposes," Judge Raymond Gruender wrote for a 2-1 majority in Standridge v. Union Pacific Railroad Co.
These were not cases that hinged on a First Amendment religious freedom argument and neither reached the Supreme Court, yet clearly "the law" was unsettled at best. We are left to wonder how the Roberts Court, with six Catholics, might have dealt with such a case. Presumably the advent of ObamaCare made appeals seem moot.