The Ham Sandwich Defense: How One Bishop Unconvincingly Argued for "Religious Freedom" to Oppose Birth Control
In his testimony at the February 16th, 2012 House Committee on Oversight and Government Reform hearing on the contraceptive coverage mandate under health reform, the Most Reverend William E. Lori, the Bishop of Bridgeport and spokesman for the United States Conference of Catholic Bishops (USCCB), defended the claim of "religious freedom" by comparing the provision of essential primary health care for women to a kosher deli being forced to serve pork.
I'll call it the "ham sandwich defense."
This was but one of a series of you-had-to-be-there-to-believe-it episodes during a hearing on women's health care that featured nine male members of the religious right and only two female witnesses, all of whom in any case are opponents of the birth control mandate, and the majority of whom oppose the use of contraception per se; saw the constant and intentionally misleading re-definition by the religious right of modern methods of contraception as "abortifacients"; shut out not only the many religious leaders who support both the mandate and women's moral agency, but also medical and health professionals and witnesses who'd experienced denial of contraceptive care; and also featured constant and strident chiding by the Committee Chair, Congressman Darrell Issa (R-CA), of his Democratic Party counterparts that the hearing was "not about women's health, contraception, or health reform," while allowing all the anti-contraception, anti-health reform witnesses to speak about nothing but denying women health care, contraception, and health reform. The Democratic women representatives walked out of the hearing in protest.
Moreover, not a single witness provided a compelling case for granting "conscience rights" to institutions, for why providing women insurance coverage for birth control would violate religious freedom, nor for why the accommodation created by the Obama Administration to make sure women working in religiously-affiliated organizations that object to contraception can still get coverage of birth control without a co-pay created a burden for said institutions. In fact, not a single one provided any compelling reason whatsoever that any one's "conscience rights" trump access to a proven health intervention.
Which brings us back to pork.
To illustrate the basic premise of his argument, Bishop Lori told what he called "The Parable of the Kosher Deli.” In summary, Bishop Lori's parable told of a new law requiring that "any business that serves food must serve pork."
There is a narrow exception for kosher catering halls attached to synagogues, since they serve mostly members of that synagogue, but kosher delicatessens are still subject to the mandate. The Orthodox Jewish community—whose members run kosher delis and many other restaurants and grocers besides—expresses its outrage at the new government mandate. And they are joined by others who have no problem eating pork—not just the many Jews who eat pork, but people of all faiths—because these others recognize the threat to the principle of religious liberty. They recognize as well the practical impact of the damage to that principle. They know that, if the mandate stands, they might be the next ones forced—under threat of severe government sanction—to violate their most deeply held beliefs, especially their unpopular beliefs.
I'll let you read the rest of it here.
Bottom line: as the leading witness for the religious right, Bishop Lori made an astonishingly weak case by urging the nation to compare a fictitious law to override religious traditions governing whether or not to eat a certain type of meat with an actual law intended to dramatically expand access to contraception, a necessary, and often life-saving, essential public health intervention that the Bishops and other religious right denominations desperately do not want women to have.
While Congress is often swimming in "pork" (and there are many members these days who are, to put it mildly, full of baloney when it comes to facts) there is no foreseeable reason any government body in the United States would mandate that kosher delis must serve pork. There are, however, rational and compelling public health, medical, social, and economic justifications for provide universal health insurance coverage without a co-pay for birth control.
Modern contraception is recognized by the Centers for Disease Control, the World Health Organization, and virtually every major medical association as one of the ten greatest public health achievements of the 20th century. It enables women and men to voluntarily plan, space, and limit pregnancies and determine the ultimate size of their families. By reducing unintended pregnancies access to contraception also reduces the need for abortion. In fact, the use of contraception as a voluntary, responsible, and effective means of planning families is, as we have noted here repeatedly, virtually universal in the United States, where 99 percent of all sexually-active women and 98 percent of sexually-active Catholic women have used contraception.
Access to contraception also enables vulnerable women to avoid potentially life-threatening pregnancies (i.e. a woman with a serious heart condition or cancer might be advised to avoid pregnancy). It has been proven to dramatically reduce maternal death and disability, and increase infant and child survival. And it is a critical intervention for often painful, sometimes crippling conditions such as dysmenorrhea andpolycystic ovary syndrome, which can affect young girls as early as age 11, and which the Department of Health and Human Services (HHS) estimates affects as many as 5 million women of childbearing age in the United States.
Contrary to the recent protestations of many a male member of the United States Congress and many a male presidential candidate, contraception is not "available everywhere" nor is it "cheap." Paying for birth control pills can run a woman well over $600 per year, not including visits to the doctor for primary care and to obtain a prescription. Insertion of an IUD may carry a high initial cost of well over $1000.00. For students and low-income women, cost is the single most important factor impeding consistent access to birth control.
Providing birth control without a co-pay, however, yields enormous savings both for insurance companies and the public, something one could fairly assume to be attractive to those many bloviators talking about government spending. And yet... no.
By comparing coverage for a major public health intervention to a law mandating that kosher delis serve pork, Bishop Lori revealed just how out of touch the USCCB and the religio-patriarchy writ large are with the needs and rights of women to live as normal human beings, and profoundly trivialized the experiences of women who struggle to manage their fertility, their health, and the well-being of themselves and their families.
If nothing else, the ham sandwich defense underscored just how shallow legally, philosophically and practically is the "religious freedom" argument against access to contraception. It revealed just howdesperate male patriarchal religious bodies and their political surrogates are to curtail the ability of women to make decisions about their bodies and their lives. And it laid bare once again the sheer digust and contempt many of them hold for actual, living, breathing women.
Legally, the claim of "religious freedom" to deny women health care doesn't have a leg to stand on. As the American Civil Liberties Union (ACLU) has noted:
"[N]othing in the rule prevents anyone from espousing their beliefs about birth control or attempting to persuade others not to use it. The high courts of California and New York have rejected claims that requiring coverage of contraception somehow violates the First Amendment, and our courts have long held that institutions that operate in the public sphere are not above the law.
Moreover, as has been noted frequently at this point, 28 states already require insurance plans to include contraception, several with the same house-of-worship exception adopted by the administration and several with no exception at all. In several states, Catholic universities and other institutions already comply with state law in providing coverage for contraceptive care. In those that do not, women are often denied access to contraception even when their health and potentially their lives are at risk. How it can be viewed as moral or righteous to deny women basic health care is beyond me.
Contraception is not a side of bacon in a kosher deli, but maybe if it were pork in a barrel we'd get universal access.