Jail Comments Raise Lots of Questions

"Divisive" comments about mandatory contraceptive coverage


Fury has been raining down upon Ken Cuccinelli the past few days, as it often does. His offense this time was to suggest that those opposed to the contraception mandate in Obamacare should go to jail for their beliefs.

In a talk-radio interview, the Virginia Attorney General—and GOP candidate for governor—cited Lincoln's dictum that the best way to get rid of a bad law is to enforce it strictly. His local bishop, he said, told him he was willing to go to jail over the matter. "And I said, 'Bishop, don't take this personally: You need to go to jail.'"

The usual suspects pounced. "Virginia women deserve better than an Attorney General who wants employers in this commonwealth to 'go to jail' rather than comply with the law of the land," said Democratic Party chairwoman Charniele Herring. Cuccinelli is trying to "set reproductive rights back 50 years," said the campaign of Terry McAuliffe, Cuccinelli's likely opponent, which urged followers to sign a petition telling Cuccinelli to "stop attacking women's rights."  "Politicians should not be involved in a woman's personal decisions about her birth control," said Planned Parenthood Virginia PAC.

You get the drift.

But these rejoinders raise a host of questions. For example:

  • If politicians "should not be involved in a woman's personal decisions about her birth control," then what business do politicians have dictating who pays for it? 
  • Last year more than two dozen women's-rights supporters were arrested at the Capitol when they refused, during a protest against Virginia's ridiculous ultrasound legislation, to vacate the steps of the South Portico. Those protesters were willing to go to jail for the sake of their beliefs. Were they wrong to do so? If not, then why is it outrageous to suggest others should be willing to do likewise?
  • The Patient Protection and Affordable Care Act, which was passed less than two years ago, does not require contraception coverage itself. Rather, it requires coverage for preventive services, and leaves the decision about which ones must be covered to the Department of Health and Human Services. HHS announced the rules requiring contraception coverage last Jan. 20. So if in fact Cuccinelli is trying to "set reproductive rights back," isn't it more accurate to say he is trying to set them back not "50 years" but (as of this moment) 362 days?
  • The McAuliffe campaign says Cuccinelli is "leading the charge to prevent women from being able to make their own healthcare decisions along with their doctor." Were women being prevented from making such decisions 363 days ago?
  • For that matter, the insurance mandates in the Affordable Care Act apply only to those businesses with 50 employees or more. Those with a payroll of 49 or fewer are free to provide no coverage of any kind, including no contraception coverage. If Cuccinelli is "attacking women's rights" by suggesting that a company with 50 employees should not have to provide contraception coverage, then isn't President Obama equally attacking women's rights by allowing even greater insurance freedom to a company with 49?
  • If, to the contrary, Obama is not "attacking women's rights" by allowing the 49-worker company to provide no contraception coverage, then how is Cuccinelli attacking women's rights by seeking precisely the same rule  for a 50-worker company?
  • Cuccinelli's critics deem it outrageous that he thinks people should be willing to go to jail over this dispute. But why is that any more outrageous or extreme than thinking we should be willing to send people to jail over it?
  • That is what his critics want to do, isn't it? Would they suggest that an employer who neither obeys the mandate nor pays the resulting fines be permitted to get away with such noncompliance?
  • The AG's critics object to his suggestion that the law be enforced vigorously. Would they prefer that the law be enforced laxly, or not at all?
  • McAuliffe terms Cuccinelli's stance "divisive." Why is it divisive to suggest that the U.S. revert to a policy nobody considered divisive when it was in place 363 days ago?
  • Were it not for the Affordable Care Act and the HHS mandate, this dispute—and the numerous lawsuits over the mandate now proceeding through the courts—never would have arisen. If objecting to the new policy is divisive, then isn't imposing it more divisive still?
  • Abortion-rights supporters strenuously object to Virginia's indefensible new regulations governing abortion clinics (regulations Cuccinelli, wrongly, supports). Are they being divisive? Is their objection the source of division, or is the real source of division the imposition of those standards in the first place?