Frame game: Birth control vs. religious liberty, again

At this point, the media storm about Health and Human Services story is growing and becoming more complex.

Once again, the goal here at GetReligion is to focus on the mainstream news coverage of the emerging story lines.

At the moment, the main framing device in the news and commentary in the mainstream press remains the same. It looks something like this:

(1) The White House says this is a story about birth control and women’s health. Thus, this is a story about birth-control debates between a small number of traditional Catholics and the rest of the nation, including most Catholics.

(2) The nasty Catholic bishops and GOP candidates are attempting to frame this story as a battle over the First Amendment and religious liberty — but that’s just politics, not doctrine. In other words, that’s mere right-wing political spin.

(3) Thus, the vast majority of news reports are framing this as a birth-control battle, perhaps with a few conservative voices thrown into the mix. Many journalists, it seems, have decided that even mentioning “religious liberty” and related Constitutional issues is forbidden, since that would raise the issue of whether religious traditionalists in all faiths have a valid point worthy of fair and accurate coverage. The “religious liberty” nuts are sort of the flat-earth people in this scenario.

The problem is, lots and lots of people — liberal Catholics and most Protestants — who are not opposed to common forms of birth control are very upset about these HHS rules. Check out this blockbuster, cover-our-tails piece from Bloomberg.

Then, after reading that, move on to this, which includes some of the most pointed language that I have seen on the Catholic left, care of Michael Sean Winters at The National Catholic Reporter:

Yes, I want a solution to this mess. But, I also want a victory by which I mean I want a really robust conscience exemption. I want any change by the White House not only to work in terms of resolving this issue but to send a clear and unambiguous statement that in this great diverse, pluralistic country of ours, there is room for us Catholics to be Catholic, with all of our quirks, and that the government recognizes that they have no business telling religious organizations what their mission is or how to manage it. I do not want the White House to cry “uncle” for the sake of crying uncle. But, when somebody punches me in the nose, and when someone punches my friends Sr. Carol Keehan and Father John Jenkins and countless others in the nose, I am not going to rush to make nice with them either. There needs to be an apology. And the President needs to go to the pro-choice caucus and explain that their stance imperils the entire Affordable Care Act, both politically and legally, and without that, they would not be discussing extending contraception to anyone.

Make no mistake about it – those who support denying Catholic institutions a more robust exemption have placed their commitment to pro-choice orthodoxy above their commitment to health care reform. Is that progressive? Is that something progressive Catholics, who fought so hard to pass the ACA, want to defend? It is time for so-called progressive Catholics to stop serving as chaplains to the political status quo and recognize a first principle when they see one. It is time for Catholics to insist that a conscience exemption that only applies to religion on Sunday and no help for the poor unless they are also Catholic is no conscience exemption at all.

Of course, it’s easy to ask: Why do religious groups need a conscience clause when they have the First Amendment, when they have a history of church-state law that says the government does not have the power to get entangled in doctrinal issues of this kind? The state does not have the right to say that “religion” is when people sit in pews, but not when they feed the poor, teach children and heal the sick — in institutions that are explicitly and meaningfully connected to religious traditions, laws and doctrines.

As I have said before, this is an argument about the separation of church and state, one rooted in the old liberalism that fiercely defended freedom of speech (and the press, by the way), freedom of association and freedom of religion.

So if Winters, Vice President Joe Biden, Chris Matthews, Cardinal Roger Mahony and flocks of other Catholic progressives — if the old liberals, in other words — see this as a religious liberty issue, what should one call the following point of view from a major journalist who all but dismisses the First Amendment claims?

This aggressive claiming of the moral high ground is close to drowning out the regulation’s supporters, inside and outside of the Obama administration. Maybe I’m missing something, but I haven’t seen a comparably full-throated defense of the regulation, issued last month by the Department of Health and Human Services, except on pure policy grounds. (And there are indications this week that even some in the administration, or at least in President Obama’s campaign apparatus, may be getting cold feet.) While the policy grounds are fully persuasive — the ability to prevent or space pregnancy being an essential part of women’s health care, one that shouldn’t be withheld simply because a woman’s employer is church-affiliated — the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.

An obvious starting point is with the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point during their reproductive lives. So it’s important to be clear that the conscientious objection to the regulation comes from an institution rather than from those whose consciences it purports to represent. (Catholic women actually have a higher rate of abortion than other American women, but I’ll stick to birth control for now.) While most Catholics dissent in the privacy of their bedrooms from the church’s position, some are pushing back in public. The organization Catholics for Choice, whose magazine is pointedly entitled Conscience, is calling on its supporters to “tell our local media that the bishops are out of touch with the lived reality of the Catholic people” and “do not speak for us on this decision.”

That, of course, is the voice of Linda Greenhouse of The New York Times — perhaps the most influential reporter who has ever covered the U.S. Supreme Court.

Is this, perhaps, the voice of the establishment media in the prestigious offices on high? Is this the voice charged with deciding who is a good Catholic and who is a bad Catholic, in the eyes of the government and, almost as important, the Times?

Greenhouse has, of course, spoken out these kinds of cultural, legal and religious issues before. Remember her famous sermon at Radcliffe about the values of the ’60s, which caused heat at NPR and then at the Times? The one that said:

… (We) were absolutely united in one conviction: the belief that in future decades, if the world lasted that long, when our turn came to run the country, we wouldn’t make the same mistakes. Our generation would do a better job. I cried that night in the Simon and Garfunkel concert out of the realization that my faith had been misplaced. We were not doing a better job. We had not learned from the old mistakes. Our generation had not proved to be the solution. We were the problem.

And of course my little crying jag occurred before we knew the worst of it, before it was clear the extent to which our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.

My point, again, is not who is wrong and who is right in this journalism puzzle.

Thus, my point is not that the “religious liberty” camp should be covered and the “birth control” arguments ignored. In fact, I will say this again: There is no way to cover this story without hitting the birth-control angle and hitting it hard. There is no way to cover this story without covering its political angles.

From a journalistic perspective, this is not doctrine vs. politics. It’s both-and. This is not “religious liberty” vs. the sexual revolution. It’s both-and. The journalistic framing in this story must take seriously the line (currently) coming out of the White House and the voices of observant Catholics, Eastern Orthodox Christians, Orthodox Jews, evangelical Protestants and others who believe that the U.S. government is trying to punish those who refuse to edit centuries of tradition and law in order to conform to Caesar. (By the way, have any church groups officially spoken out to back the White House on this?)

Now, let’s use the comments pages to share the URLs for hard-news stories and other commentaries that attempt this “both-and” approach to framing this story — an old school, journalistic, old-liberalism approach. You can start right here, with this new essay by the progressive Catholic scribe David Gibson, writing for Religion News Service.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Deacon John M. Bresnahan

    t–I’m surprised you didn’t also mention Orthodox Christian Churches as siding with the Catholic Church on this issue. The Orthodox don’t like being pushed around by “Caesar” either. I notice most news accounts I’ve read and seen on TV will mention other religions getting upset too–But then they don’t name them. I suspect one thing that raised Orthodox ire is that only places of worship are exempt from Obamacare coercion. Where does that leave educational establishments like seminaries (which most religions have in America.)
    Also an apparent interesting pattern–the media people siding with the First Amendment, religious freedom and the Catholic Church seem to usuially mention that abortion pills are part of the mandate–while those willing to toss the First Amendment overboard seem to never mention the mandated abortificants.
    Usually I find Rasmussen Polls most fair, but in their list of questions to poll people I don’t recall one mentioning the funding abortion coercion.

  • tmatt

    Fixed, adding the Orthodox and another relevant question.

  • Deacon John M. Bresnahan

    Note–I just double-checked the Rasmussen poll and not one question mentioned “religious liberty”, “First Amendment” or the U.S. Constitution.

  • Dave G.

    Most of the news I’ve seen has framed it along the lines of ‘contraception’ and ‘women’s health issues.’ One interesting argument has been this notion that 98% of Catholic women use birth control. I’m not sure what that’s trying to say. It seems an argument that supporters of the mandate are happy with, but I’m not sure exactly why that is constantly being used, and accepted, in the various news debates I’ve watched.

  • MikeL

    Dave G beat me too it, but I’d like to echo his point about the “98% of Catholic women” bit: why do reporters find this at all compelling?

    Secondly, where does this stat come from? 98% of all sexually active Catholic women? Are we sure about this? A claim of 98% of any population group doing anything should raise a red flag.

  • Martha

    tmatt, I’ve just noticed a very interesting, because subtle, shift in the narrative proposing and defending this mandate:

    “It is our clear understanding from the administration that the president believes as we do, and the vast majority of the American women should have access to birth control,” Sen. Barbara Boxer, D-Calif., said pointing out that 15 percent of women use birth control for medical issues. “It’s medicine, and women deserve their medicine.”

    Notice the change? Now it’s not “all the women in America” or even “98% of Catholics already use contraception”, and it’s not about reproductive health rights, it’s 15% of women for medical reasons.

    See how it’s being re-framed to say that the mean ol’ Catholic Church wants to deny a small but significant minority of women who need the oral contraceptive pill prescribed for valid, medical, non-contraceptive reasons their legitimate medicine?

    Except that, you know, if you’re a Catholic woman (yes, even a nun!) who needs treatment for dysmenorrhea, polycystic ovarian syndrome or any of other conditions for which the Pill is prescribed not as birth control, the mean ol’ Catholic Church has no problem with that.

    I think they weren’t expecting the level of resistance and bad PR they got, especially not from the progressive Catholics, and now they’re trying to re-cast the discourse as “medical necessity versus religious backwardness”.

  • Martha

    I would also like to know more about that 98% figure, because that would mean either (1) 2% of sexually-active Catholic women (and remember, this includes married women as well) are the ones having all the babies or (2) the figure actually is “98% of sexually active Catholic women using contraception use the Pill solely or mainly as their major form of birth control” which could be a smaller sub-set of the total sexually-active female Catholic population, which is again a smaller sub-set of the total female Catholic population (that is, it does not include widows, unmarried women, nuns and others who are not sexually active).

    The news media is bad at science, and everyone (even scientists) is bad at statistics – ask a statistician about the understanding of probabilities when doctors are making diagnoses and recommending screening for various diseases.

  • Martha

    Here is a fairly up-to-date listing of the contraceptive methods used by American women (the Guttmacher Institute, July 2010):

    “Among the 43 million fertile, sexually active women who do not want to become pregnant, 89% are practicing contraception.”

    …Sixty-three percent of reproductive-age women who practice contraception use nonpermanent methods, including hormonal methods (such as the pill, patch, implant, injectable and vaginal ring), the IUD and condoms. The remaining women rely on female or male sterilization.

    Contraceptive choices vary markedly with age. For women younger than 30, the pill is the leading method. Among women aged 30 and older, more rely on sterilization.

    …The pill and female sterilization have been the two leading contraceptive methods in the United States since 1982. However, sterilization is the most common method among black and Hispanic women, while white women mostly commonly choose the pill.”

    So what I am going to presume is the “98% of Catholic women” figure actually started off as “98% of sexually active Catholic women using contraception (please note important qualification!) choose the Pill” which then became, through haste, impatience or just not reading the source documents thoroughly, “98% of sexually active Catholic women choose the Pill” then further became “98% of Catholic women use contraception”.

    Or that could be a completely made-up, fabricated, false figure which they pulled out of their…ears, but I still retain a tiny shred of faith in the media which does not permit me to call them total liars :-)

  • Mark Baddeley

    IIRC the 98% figure was discussed previously in one of the earlier threads on this issue and it was argued that it comes from one study done by a PP funded group to put out studies that (invariably) support PP’s stance. One of the commentators in the relevant thread did a good fisking of the figure in light of the report to show that it isn’t really 98%.

    My own quick look around on the net showed that even *if* the 98% figure is right, it still isn’t quite what it looks like. Apparently the more actively a Catholic woman practices her faith and ticks ‘my religion is very important to me’ the more likely that she or partner opts for a single time sterilization. This appears to be because the latter can be confessed once, rather than constant use of contraception which places an ongoing burden on the conscience.

    So, unless the mandate is going to require funding sterilization as well (and it might, I’m no expert) then the 98% figure, *even if right*, doesn’t really speak to this issue as directly as it might seem. So I think journalists are (sigh) again, acting as advocates (either deliberately or due to incompetence) if they keep repeating that figure as though it is either trustworthy, or means that 98% of Catholic women want their health-plan to provide access to the pill or the like.

  • Mark Baddeley

    On a different point. This from Greenhouse:

    So it’s important to be clear that the conscientious objection to the regulation comes from an institution rather than from those whose consciences it purports to represent.

    I’m no expert on American history of freedom of religion. But the interpretation that Greenhouse has placed on the issue here, would seem to strongly favor Protestants and similar religious groups over members of more hierarchical faiths.

    Us Protestants (like myself) warm naturally to a distinction between the individual and the institution and see the institution as existing for the sake of the individual to *some* degree. But, while I’m no expert on Catholicism or Orthodoxy, I don’t get the impression that this strong gulf between ‘individual’ not the ‘institution’ works quite the same way for them.

    In other words, the Catholic church does not purport to represent Catholics. That’s not the relationship that exists between the Church and the individual. And that’s one reason why doctrine isn’t determined by a head count in the Catholic church.

    For a journalist to frame things this way seems to my eyes to already impose the kind of doctrinal test that the freedom of religion clause is designed to stop. This is a highly Protestant (or even just democratic) reading of who or what gets a freedom of conscience.

  • Rachel K

    I have yet to see any news stories where they actually talk to women whose employers don’t cover birth control. Are they out there? Their perspectives would be interesting, since they’re the main women who have a dog in this fight.

    The 98% figure always makes me roll my eyes, since it explicitly says that it covers all Catholics who have ever used birth control. Heck, Scott Hahn is part of the 98% by those standards.

  • Thomas A. Szyszkiewicz

    Martha’s link isn’t working, so here it is again. Boxer’s statement is telling: “It’s medicine, and women deserve their medicine,” damn it!

    As to that 98% stat, Martha, Bain Wellington gives a thorough analysis of it here at number 8. Would that journalists did half the work Bain did — we might actually get some real information.

  • Susan Davis

    It would also help if there would be acknowledgement that the Catholic Church does not prohibit using contraceptive drugs for other, genuinely therapeutic reasons–and never has. Here it is, straight from Humanae Vitae:

    15. On the other hand, the Church does not consider at all illicit the use of those therapeutic means necessary to cure bodily diseases, even if a foreseeable impediment to procreation should result there from—provided such impediment is not directly intended for any motive whatsoever.

  • Mike O.

    The next logical follow-up to the debate: If an employer can have an exemption here, can they have an exemption to all labor laws and regulations? If not all, then some? And if some, where is the dividing line between a labor regulation that all employers must follow and one they can choose to opt out of?

    I’m not advocating one way or the other, but I think these are questions the media needs to ask.

  • Martha

    Thomas, thanks for the link to Bain’s work. And so we see that the 98% figure boils down to “Of all the women who say they have used contraception, 98% have used contraception”, which seems to me to be a circular argument :-)

  • Dan

    98% of Catholic women aren’t involved in the ministry to the sick, so what is Ms. Greenhouse’s point? The reason she has no point is that she does not understand what motivates the Church when the Church is conducting her ministry to the sick and to the poor. It is not, as Ms. Greenhouse seems to think, one big institution, the Church, acting as the manager of hospitals as though they were businesses. It is, instead, Christ’s church seeking to serve the truth in and through charity and thereby live out its faith — the same faith that teaches that the use of artificial contraception is contrary to the truth about sexual love. As such, for the Church the HHS mandate is not a political or constitutional issue. It is, rather, an existential issue that can’t be compromised.

  • Deacon John M. Bresnahan

    Interesting that the first Catholic group to bring a lawsuit is a Catholic media outlet: Mother Angelica’s Eternal Word Network which has over 300 emplyees-not all Catholic, but they are very much aware of EWTN’s mission statement about it being a strong, traditional Catholic enterprise.
    A person from EWTN was interviewed on CNN. The interviewer just kept mentioning only contraception. Finally the EWTN person reminded him the Obama mandate is also for abortion pills.

  • sari

    98% of Catholic women aren’t involved in the ministry to the sick, so what is Ms. Greenhouse’s point? The reason she has no point is that she does not understand what motivates the Church when the Church is conducting her ministry to the sick and to the poor. It is not, as Ms. Greenhouse seems to think, one big institution, the Church, acting as the manager of hospitals as though they were businesses. It is, instead, Christ’s church seeking to serve the truth in and through charity and thereby live out its faith — the same faith that teaches that the use of artificial contraception is contrary to the truth about sexual love. As such, for the Church the HHS mandate is not a political or constitutional issue. It is, rather, an existential issue that can’t be compromised.

    Dan, The days of nuns staffing hospitals are long gone. These are businesses run under Catholic auspices, and they are run as such.

    My son died 24 hours after an accident. We buried him the next day, a Friday. Monday morning a malpractice attorney called to see if I wanted to file charges against the hospital, founded by the Daughters of Charity and owned by Ascension. I asked how he had come to call. Though my son was airlifted as a John Doe, he was given excellent care; we in no way faulted the hospital for his demise. Apparently it is standard practice for the hospital to file a lien immediately after discharge; lawyers check the filings each morning and spend the day placing calls. We also noted a fair amount of bill padding and had several thousand dollars removed before the final bill (>$100K) was submitted to insurance.

    A few years later the paper published the results of an investigation, which outlined how the hospital used strong arm tactics to obtain payment (not an issue for us) on former patients, many of whom had been bankrupted as result or had their credit destroyed in the process. Like my son, they had come in as emergencies and suffered profound and lasting consequences.

    This is what most people would call business, not charity. The hospital serves the poor and is heavily, though not entirely, reimbursed by state and federal government. The rest of us must pay, regardless of circumstance, or face aggressive recovery tactics.

    Take a look at this:

    Padding bills, submitting false claims (my local hospital is listed in the first grouping: Medicaid fraud), how do these square with their mission?

  • Dan

    Sari, Catholic hospitals are not exempt from the laws of nature or economics and, consequently, make mistakes and face practical issues; this does not change the fact that they exist to carry out the Gospel and for no other reason. (The modern hospital as we know it today in large part derives historically from the Church’s ministry to the sick. Cf. Council of Nicea (325 A.D.))

  • Dan

    And in answer to your question of how Medicaid fraud squares with the mission of a Catholic hospital, the answer is that it doesn’t. I doubt that fraud squares with any organization’s mission, other than perhaps the Mafia’s.

  • Ann

    Deacon John M. Bresnahan says: February 9, 2012, at 11:30 am

    the media people siding with the First Amendment, religious freedom and the Catholic Church seem to usuially mention that abortion pills are part of the mandate—while those willing to toss the First Amendment overboard seem to never mention the mandated abortificants.

    Preventive Services Covered Under the Affordable Care Act

    Contraception: Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling, not including abortifacient drugs*

    The above information is dated: 2012-01-30

  • Jeff


    In addition to the Mafia, fraud squares well with the missions of the Democratic Party and Republican Party. Planned Parenthood, too …

  • Ann

    State Court cases for “birth control vs. religious liberty” have resulted in birth control winning. The following is from a court decision with many footnote references to other cases. The NY law defined a “religious employers” very similar to the Affordable Care Act and other states, including Romney’s Massachusetts health care law.

    Catholic Charities of the Diocese of Albany v. Serio (decided October 19, 2006)

    “Ten faith-based social service organizations” affiliated with the Roman Catholic Church and the Baptist Bible Fellowship International challenged the validity of the Women’s Health and Wellness Act (“WHWA”), an act designed to promote greater equality in access to healthcare. The plaintiffs argued that the WHWA violated religious rights guaranteed by the United States Constitution and the New York State Constitution. Accordingly, the plaintiffs sought to enjoin the State Superintendent of Insurance from enforcing the WHWA.

    The United States Supreme Court’s decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) bars plaintiffs’ federal free exercise claim. ? In Smith, the Court interpreted its First Amendment decisions as holding “that the 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)’?” (id. at 879, 110 S.Ct. 1595, quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 ?[1982, Stevens, J., concurring]?). ? The Court held that where a prohibition on the exercise of religion “is not the object but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended” (494 U.S. at 878, 110 S.Ct. 1595).

    ?By that test, the First Amendment has not been offended here. The burden on plaintiffs’ religious exercise is the incidental result of a “neutral law of general applicability,” one requiring health insurance policies that include coverage for prescription drugs to include coverage for contraception. ? A “neutral” law, the Supreme Court has explained, is one that does not “target [?] religious beliefs as such” or have as its “object to infringe upon or restrict practices because of their religious motivation” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 [1993]?). Religious beliefs were not the “target” of the WHWA, and it was plainly not that law’s “object” to interfere with plaintiffs’ or anyone’s exercise of religion. ? Its object was to make broader health insurance coverage available to women and, by that means, both to improve women’s health and to eliminate disparities between men and women in the cost of health care.

    With 115 footnote references

  • John Pack Lambert

    I am wondering if a good way for reporters to cover the issue would be to write hypothetical similar situations that capture the essence of what is involved, so people can look beyond “birth control” and see “religious liberty”. The follwoing is what I wrote for a comment at the Deseret News to try and express what to me seems to be a close equivalent which would apply to Mormonism. I know it is only a close equivalent, and not a direct correlary, but I think it would highlight the real issues.

    What if to encorage the health of all people the government mandated all employers provide a free meal to employees. To encorage better health it required a glass of wine with the meal since that reduces rates of heart disease. The government would exempt BYU from the wine requirement, since virtually all students are LDS. However it would mandate wine be served at Deseret Industries since a large portion of the employees are not LDS. It would then give the LDS Church the option of including free wine in on-the-job meals served at Deseret Industries or adopting a policy that makes it so only baptized church members can be employed at Deseret Industries. Then in a compromise the government says that the employers do not have to pay for the wine, but the caterers providing the free meals must include wine in the meals. Of course, most large companies would be self-catering the meals, and even those who are not will figure that the charge the caterers asses them will cover the free wine, whether or not the wine is included in the itemization of the catering bill.

    Actually, as I write this it becomes more and more an exact equivalent of what the Obama administration is doing. The requirement that DI provide free wine to its employees is as out of line with Mormon doctrine as the requirement for free contraceptions is to Catholic doctrine.

  • John Pack Lambert

    Doesn’t the “98% of sexually active Catholic women” by its very nature exclude unmarried women who seek to follow the teachings of the Catholic Church?