In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don't offer prescription coverage or don't offer insurance at all are exempt, because they treat men and women equally—but under the EEOC's interpretation of the law, you can't offer other preventative care coverage without offering birth control coverage, too.
"It was, we thought at the time, a fairly straightforward application of Title VII principles," a top former EEOC official who was involved in the decision told Mother Jones. "All of these plans covered Viagra immediately, without thinking, and they were still declining to cover prescription contraceptives. It's a little bit jaw-dropping to see what is going on now…There was some press at the time but we issued guidances that were far, far more controversial."
After the EEOC opinion was approved in 2000, reproductive rights groups and employees who wanted birth control access sued employers that refused to comply. The next year, in Erickson v. Bartell Drug Co., a federal court agreed with the EEOC's reasoning. Reproductive rights groups and others used that decision as leverage to force other companies to settle lawsuits and agree to change their insurance plans to include birth control. Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained, and over the following decade, the percentage of employer-based plans offering contraceptive coverage tripled to 90 percent.
This fight has been long settled based on Title VII law. Clinton put it on the books on the way out without controversy, and it was on the books for every single day of the Bush 43 administration without controversy. It was on the books for three years under the Obama administration, without controversy. Nine out of ten businesses in the country, including religiously affiliated hospitals, schools, and charities, provided contraception coverage. 27 states went on to put similar provisions on their books without incident.
It wasn't an issue at all until an African-American Democrat in the White House decided during an election year that "Hey, this is a good idea, let's put this on the books for all 50 states" just after getting yet another monthly unemployment report that showed that his policies were starting to bring the jobs numbers back around, and that his prospects for re-election were improving along with that uptick on what basically everyone agreed up until that millisecond was the most important issue of the day, the economy itself.
Then, the existing rules of the game for the last dozen years changed literally overnight to fit the theory that the President was "declaring war on Americans' religious freedoms." Then the rules immediately changed to create "a firestorm of controversy". Then the rules changed so that people questioned why Catholics in the Obama administration, including the Vice-President and the Secretary of Defense, hadn't resigned in protest yet.
It wasn't an issue until the GOP started openly asking if they were going to lose big in November and Newt Gingrich had melted into babbling radioactive slag and Rick Santorum became the latest Anti-Romney, revealing the fatal weakness of "the frontrunner".
Only now do the god-botherers and the institutional misogynists and the bigots and the pinheads and the weasels have an issue.
Only now. They are this desperate to defeat President Obama.
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