The Magazine

The Persecution of Belmont Abbey

Obama's EEOC doesn't believe in religious liberty.

Oct 26, 2009, Vol. 15, No. 06 • By CHARLOTTE ALLEN
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Just two years ago, 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. Gruender pointed out that the Eighth Circuit had earlier ruled that an employer's refusal to pay for (even more expensive) infertility treatments for female employees did not constitute sex discrimination under the PDA.

While the Standridge decision is legally binding only in the handful of Midwestern states that make up the Eighth Circuit, the case was considered so important nationally that -Senate majority leader Harry Reid and 29 other federal lawmakers signed an amicus curiae brief urging the Eighth Circuit to make contraceptive coverage mandatory under Title VII. The names of some of those signers are significant: not just Reid's but those of Henry Waxman, chairman of the House Energy and Commerce Committee and key author of the current House health care legislation, and Olympia Snowe of Maine, the only Republican besides Chris Shays to sign the amicus brief and also the only Republican to sign on to the Senate Finance Committee's health care bill that is currently pending before the full Senate. The Alliance for Justice, a Washington-based liberal advocacy group, issued a scathing denunciation of the Standridge decision titled "Keeping Them Barefoot and Pregnant" and making much of the fact that Gruender had been appointed to the Eighth Circuit by President George W. Bush, enemy of all things liberal.

The EEOC, however, has adamantly maintained--or at least has adamantly maintained while Democratic presidents who appoint commission members have held office--that prescription contraceptives belong in every employee health plan, or else. In a decision handed down during the last days of the Clinton administration, on December 14, 2000, the commission essentially stated that employers, in order to comply with Title VII, must not only cover "drugs, devices, and preventive care" related to contraceptives, but visits to doctors to prescribe and monitor them as well. "Contraception is a means by which a woman controls her ability to become pregnant," was the decision's way of reasoning to a connection to Title VII and the Pregnancy Discrimination Act.

The EEOC's push to enforce that interpretation became somewhat muted during the Bush years (the commission stayed out of the Standridge case, for example), but President Obama's appointments to the five-member commission suggest a more aggressive approach on this front. His acting chair, Stuart Ishimaru, appointed on January 20 right after the inauguration, promised to attack "both traditional and emerging forms of workplace discrimination." Another Obama appointee to the EEOC, Georgetown University law professor Chai Feldblum, has called for strict, no-religious-exemption enforcement of antidiscrimination laws, at least when it comes to gay rights. Connect the dots between March, not long after Obama took office, and the end of July, and it's hard not to surmise that Washington's EEOC headquarters played a role in the Charlotte district office's about-face in the Belmont Abbey case.

One problem for Belmont Abbey is that most other employers have thrown in the towel on contraceptives. The Union Pacific Railroad, which had balked at providing low-cost birth-control pills to 1,500 female employees affected by the Standridge ruling, gave up the fight at about the same time the decision came down, and the case never went to the Supreme Court for a definitive nationwide ruling. It's estimated that 90 percent of employers nowadays provide contraception coverage. Perhaps their theory is that it's cheaper than paying for childbirth, and a lot cheaper than paying for lawyers to fight a case like Standridge. Or perhaps, since employers (and insurers) are willing to subsidize their male employees' access to Viagra, and even, in some cases, Propecia, which contribute zilch to health but facilitate sexual fun, they believe they ought to do something similar to ensure that the women on their payrolls have a good time without worrying.