Ohio Attorney General Mike DeWine recently sent a letter to HHS SecretaryKathleen Sebelius urging her and the Obama administration to restrict access to contraception for Ohio’s women by allowing any employer to opt out of paying for contraceptive coverage. The action helps secure DeWine’s already disturbing anti-women reputation, and the failed legal logic used to support his position adds to the long list of mistakes DeWine has made regarding the law since taking over as AG.
Today David Pepper, DeWine’s likely opponent for Attorney General in 2014, slammed DeWine for his legal mistakes and his attempt to force his own religious beliefs on Ohio’s women.
In his own letter to Sebelius, Pepper writes that DeWine’s proposed exemption “would be a dramatic step backward for women’s health and autonomy” and “would place women in the unacceptable position of being required to seek and receive their (overwhelmingly male) bosses’ moral approval for what are highly personal health care choices-choices that should be left to each woman, her family and her faith, with consultation from her doctor … not her boss.”
Pepper also takes DeWine to task for completely misinterpreting the Religious Freedom Restoration Act (RFRA). As Pepper points out, the “RFRA was meant to be a ‘shield’ protecting religious freedom, not a ‘sword’ allowing one to impose his views on others. Attorney General DeWine’s approach turns that proverbial shield into a sword, wielded largely by men against the women who work for them.”
“DeWine’s letter promotes bad policy, offers up bad law, and shows utter disregard for the rights of women to make their own health decisions,” writes Pepper. “In 2013, at least, this is simply not where we are or where we want to go as a country.”
According to Pepper, Ohioans can use this link to provide their own comments on the proposed regulations.
The full text of the letter is included below.
April 8, 2013
Secretary Kathleen Sebelius
Centers for Medicare and Medicaid Services
Department of Health and Human Services
Mail Stop C4-26-05
7500 Security Boulevard
Baltimore, MD 21244-1850
Dear Secretary Sebelius:
I write to express my support for the balanced, consensus-based position you have proposed and are now seeking comment on regarding women’s access to birth control coverage, RIN: 0938-AR42.
As an Ohioan and an attorney, I also am writing to speak out against the demand by Ohio Attorney General DeWine (along with 12 other Attorneys General in a letter dated March 26, 2013) that you create a private sector exemption to the policy you have outlined.
As it stands, your proposed policy respects and protects religious liberty by allowing religious organizations and non-profits to turn such coverage over to a third party insurer.
But providing the “conscience grounds” exemption for private corporations that Attorney General DeWine demands would be a dramatic step backward for women’s health and autonomy. It is wrong as a matter of basic rights, policy, and the law.
Such an exemption would place women in the unacceptable position of being required to seek and receive their (overwhelmingly male) bosses’ moral approval for what are highly personal health care choices-choices that should be left to each woman, her family and her faith, with consultation from her doctor. And not her boss.
And the precedent of providing a private sector “conscience” exemption would take it far beyond the current debate over contraception coverage. Depending on a CEO’s particular “conscience” or moral beliefs, coverage for critical care such as mammograms, cancer screenings, maternity care or even mental health could also be threatened. (And Attorney General Dewine’s letter makes it clear that he wants the exemption to apply not just to contraception, but to other regulations in the future).
Not surprisingly, as a matter of law, the position staked out by Attorney General DeWine has no merit. Long-accepted First Amendment doctrine holds the opposite of what he is claiming. As Justice Scalia wrote twenty years ago: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law…. [T]he right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'” Employment Div. v. Smith, 494 U.S. 872 (1990).
As for the Religious Freedom Restoration Act (RFRA), which Attorney General DeWine cites, it simply does not require the exemption for private companies’ provision of health insurance, as he is demanding. Indeed, the Attorney General’s interpretation of RFRA turns the law on its head by allowing CEOs to impose their personal religious beliefs on all their employees, who inevitably have a variety of religious views and beliefs of their own. As one court said, RFRA was meant to be a “shield” protecting religious freedom, not a “sword” allowing one to impose his views on others. Attorney General DeWine’s approach turns that proverbial shield into a sword, wielded largely by men against the women who work for them.
Bottom line, the current proposal simply requires an employer to offer comprehensive health insurance. A third party (the employee) can independently decide to utilize the contraception option from that coverage. This attenuated connection does not rise to the level of “substantial harm” to the CEO’s freedom of exercise that RFRA was intended to protect against. If it did, citizens or employers could cite RFRA as a reason to stop paying taxes into federal programs such as Medicaid that also provide contraception coverage.
In sum, Attorney General DeWine’s letter promotes bad policy, offers up bad law, and shows utter disregard for the rights of women to make their own health decisions based on their own consciences, faiths and individual health circumstances. The precedent it would create would lead to a haphazard, unpredictable and unworkable swiss cheese of health care coverage based on the individual (and potentially evolving) beliefs and consciences of business owners and CEOs.
In 2013, at least, this is simply not where we are or where we want to go as a country.
Accordingly, please do not accede to Attorney General DeWine’s demand for a private exemption to the proposed policy.
Thank you for your attention.
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