Friday, November 02, 2012

Family Ties

The conversation thus far has focused on the employees and students who would receive services under the law. The text of the HHS rule, however, extends far beyond them. It requires coverage, with no co-pay charge, of all Food and Drug Administration-approved "contraceptive methods, sterilization procedures...for all women with reproductive capacity."

That includes all female minors who are covered under employer-provided family insurance plans. That means Obama's contraceptive mandate extends to all American daughters covered by an insurer.

You'd think we'd have figured this out about the HHS mandate, simply by following its logic: You have dependent children. You are employed by a company whose insurance benefits require (via the mandate) free access to contraceptive, sterilization and abortifacient means of birth control. One or more of your dependent children is a daughter. She is thus covered, and if she wishes to have the access, you have no legal recourse to prevent it.

Currently, twenty-six states and the District of Columbia allow all children twelve and older access to contraceptives without any parental consent or notification. Connecticut and Maine let minors get an abortion without parental consent or a court's permission. States such as Oregon allow sterilization — yes, without parental consent or notification — as young as age fifteen.

Twelve and older? I thought a twelve year old who had sex was being statutorily raped by someone, whatever state she lives in. Yet the state's law would encourage this. Such laws of fairly longstanding ought to have been enough by themselves to have instigated a voter rebellion, throwing out the office holders who support the policies and impeaching any judges who impose them. There's just one problem: the voters don't care. If they did we'd have seen results a long time ago. We haven't, and we won't. That's why I say the country is morally insane. And now

The President has obliterated the laws of about half the states. Parents cannot opt out — they have to pay for this whether they like it or not. And they won't even find out from their insurance bills because of the elimination of any co-pay.

Supporters of the administration's policy argue this is a good thing. The Guttmacher Institute, a strong promoter of abortion and contraception, said in a September briefing, "many minors will not avail themselves of important services if they are forced to involve their parents."

It ought to be front page news, but since you're among the very few who care, you get it instead from Ben Domenech at Patheos.

Hat tip to Paul Cella of W4.


Lydia McGrew said...

Several of us at W4 were researching state laws on this in my thread on the new study claiming to show that contraception prevents abortion. We found that Missouri, where the study took place, is one of the states that doesn't expressly allow minors to receive contraception (particularly prescription-level) without parental consent. Kevin Jones, I believe it was, found a court decision from some decades back striking down a law as "unconstitutional" because it outlawed selling contraception to minors!

However, Tony found a later decision saying that that "right" was not absolute or something like that.

I haven't researched it, but it appears that part of the problem is that these states don't have express *laws* against giving a minor prescription contraception without a parents' permission (or even judicial override) as many states do with abortion. Hence, it's a grey area of law, and the Guttmacher Institute expressly says (written before the Obamacare mandate) that many doctors therefore prescribe contraception for "mature" minors without parental permission even in these states.

I'm guessing that the reason it's been left grey is because of these past court rulings.

If the states _did_ have explicit laws as in the case of abortion, the Obama mandate wouldn't overturn them in itself, because the doctor would still be liable to prosecution regardless of whether the girl's insurance gave her the wherewithal to pay.

I assume there would be a court battle if any state actually tried to outlaw writing a contraception prescription for a minor. The way the courts are now, who knows what would happen, and doubtless any new precedent set there would also have the potential to overturn parental consent laws re. abortion. Still, I think the states should try doing it.

William Luse said...

I agree. But the thing Domenech wants to bring home is just how malicious this mandate is in its disregard for parental primacy in a matter so intimate as their daughter's sexual behavior. What worries me is that the Supreme Court has ruled in the past (as best I recall) that teenagers can get contraception without parental approval. If the mandate is struck down (the one compelling contraceptive coverage) I'm wondering if they'd uphold this part of it. They've tried to split such babies before.

Lydia McGrew said...

Not sure how that would work. Are you envisaging their saying that employers can't generally be compelled to provide contraceptive coverage against their consciences or religious objections but that they _can_ be compelled to provide it only for minor dependents of their employees? If so, that seems _highly_ unlikely to me. If the idea is that women have a right to this provision and that this is a sufficient government interest to override employer's conscientious objections (which is the legal pretext that would be used), SCOTUS would not be likely to rule that adult women don't have a right to it but that minor girls do.

The bigger problem that needs to be addressed is that there are state laws that _expressly_ give minors a right to receive contraception without parental knowledge. In fact, some state laws expressly forbid doctors to discuss with parents their minor children's contraception receipt *or STD diagnosis or treatment*. They are forbidden to tell the parents! Those state laws have been in place for a long time and must be changed.

One more thing: I believe that one of the points of the last few years' harassment of pro-life crisis pregnancy centers is to attempt to get these centers' employees roped in under state confidentiality laws which would prevent them from telling parents of their daughter's pregnancy or bringing in parents and other counselors to try to dissuade girls from having an abortion.

Lydia McGrew said...

I'm going to put up a post soon about a case in Poland where a hospital and the government are in trouble for telling a priest that a girl was thinking of having an abortion. The priest was brought in to try to dissuade the girl, and part of the hoopla, for which the parents have been awarded damages by the EU Court of Human Rights (I think that's the entity), is the "breach of confidentiality" in telling the priest.

Sorry if that's OT, but it's in the general vicinity of the desire to separate the girl desiring abortion or contraception from everyone who might dissuade her.

William Luse said...

"If so, that seems _highly_ unlikely to me."

You are correct. What I meant to say is that (if I'm reading Domenech right) in those states that have laws requiring parental notification for either contraceptive prescriptions or abortion, the mandate will override those laws. But since (and I'm pretty sure I'm right) the Supreme Court has already ruled that teens have a right to these things, most of those state laws contain a provision (in order to remain in effect) that the teen can seek out a judge's permission without parental knowledge. It may mean that the mandate, if upheld, will allow the kid to skip the judge part.

The bigger problem that needs to be addressed is that there are state laws that _expressly_ give minors a right to receive contraception without parental knowledge...Those state laws have been in place for a long time and must be changed.

Yes, the root of the evil. I think those laws may have gotten their impetus from Carey v. Population Services Int'l, in which "the court did away with a New York law forbidding the sale or distribution of contraceptives to persons under 16 years of age because, yes, they are protected by the constitution as well." (quote from an old post of mine.)

KJJ said...

Got the story out in September:

It made the front page of New Advent. I should've passed it on to W4.

I was pursuing the story in June, I wish I had gotten it out then.

William Luse said...

Better late than never. But it's probably too late to affect the election.