The Contraception Controversy: A Comprehensive Reply (2 of 7)

2) Both the original policy and the accommodation are legally and constitutionally sound.

The Obama Administration’s recently announced policy to require insurers to cover contraception as women’s preventive health care has prompted many over-heated op-eds, editorials on both sides and even a thoroughly one-sided Congressional hearing. The controversy is unlikely to end anytime soon: pending federal legislation and proposed amendments would massively enlarge the scope of insurers’ and business owners’ ability to restrict any type of insurance benefit on either “moral” or “religious” grounds, undermining the very purpose of insurance.  

Below, we take a closer look at the arguments by opponents of the contraception requirement, unpack the legal issues and public health debate, and respond to many erroneous assertions.

Full Introduction

1) Religious liberty and the right of an individual to live according to his or her own religious conscience are supported, not threatened, by this policy.

2) Both the original policy and the accommodation are legally and constitutionally sound.

Contrary to loud claims by opponents, neither the Administration’s policy accommodation nor the prior rule violate constitutional principles or federal law. Indeed, one reason for all the fuss in Congress may be that opponents of the contraceptive-coverage requirement are aware they lack a robust legal basis for challenging the policy, and that they would not be supported in their claims even by conservative justices on the Supreme Court. Their case, in short, is a loser.

The two most relevant court decisions to date upheld similar state contraceptive-coverage requirements over objections by religiously-affiliated institutions – objections nearly identical to those now being launched in public and Congress. In one case, thehighest court of New York held that a contraception coverage requirement that was less deferential to religious organizations did not substantially burden religious beliefs or practices because “when a religious organization chooses to hire nonbelievers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.”

In a second case, the California Supreme Court held that Catholic Charities was not an arm of the church, but a “nonprofit public benefit corporation,” and emphasized that most of the organization’s employees “do not belong to the Catholic Church.” Consequently, the court wrote, it would be grossly unfair to allow the church hierarchy to veto the health rights of employees – a majority of whom are non-believers. The court also highlighted the crucial distinction between religious adherents and employees: “Only those who join a church impliedly consent to its religious governance on matters of faith and discipline.”

Indeed, the Supreme Court has repeatedly emphasized that conscience rights belong to individuals, not institutions. For example, in McCreary County v. ACLU of Kentucky, the Court noted that “[t]he Framers and the citizens of their time intended…to protect the integrity of individual conscience in religious matters…” Wallace v. Jaffree similarly held that “the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” And in Glickman v. Wileman Brothers & Elliott, Inc., the Court proclaimed that “at the ‘heart of the First Amendment [is] the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience.’”

Yet the individual conscience rights of employees are utterly disregarded by the opponents of this rule who seek a broad religious exemption that would adversely affect a host of other actors – including women, children, and the families of those employees. The Bishops thus seek a religious exemption from a neutral law at the expense of third parties. But as the court observed in the California decision, “[w]e are unaware of any decision in which...the United States Supreme Court...has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”

Opponents of the contraceptive-coverage rule point to a recent Supreme Court decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, as evidence that the Court would find the rule unconstitutional. But that decision is irrelevant to the questions that would be posed by a challenge to the contraceptive-coverage requirement. Hosanna-Tabor was about whether a “called” teacher who taught classes at a religious school and had been qualified as a religious instructor through a specific internal process should be considered a “minister” for purposes of employment law. The Court’s decision – that she was indeed a minister and therefore was not able to pursue a discrimination claim – turned on their analysis of whether she was properly considered a religious employee. It did not disturb settled law regarding the test for public-facing institutions, as described above.

To the contrary, applying this test to the Administration’s accommodation shows that opponents of the law are unlikely to prevail in a constitutional challenge. The requirement that contraceptive coverage be available to employees through their health plans does not violate the Free Exercise Clause of the First Amendment because it is a neutral and generally applicable law. (And, as we have demonstrated, all of the cases routinely cited by opponents of the law are beside the point.)

In short, no religious exemption to the rule would be required by the First Amendment. By providing an exemption for houses of worship and an accommodation for objecting organizations, the Administration has carefully balanced interests despite being under no legal obligation to do so. Indeed, the policy mirrors the concerns reflected in the New York and California state court decisions by protecting the conscience rights of individual employees to make their own decisions on matters of faith, privacy and health.

Another claim objectors make is that the no-copay-contraception rule violates the First Amendment's guarantee of free association by forcing religiously affiliated employers "to associate with an ideology that violates their religious beliefs" - the precise claim made by seven state attorneys general who have filed a lawsuit objecting to the contraceptive-access rule. This claim - that obeying a law "associate[s] oneself" with the law's "ideology" - is absurd. Hundreds of laws oblige citizens, some with which they may disagree - but that does not mean that the laws violate everyone's First Amendment rights.

In addition, courts consistently hold that freedom of association is about association with individuals. For example, the Bishops' comments on the no-copay-contraception rule cited for support cases in which groups were permitted to exclude gay individuals. But nothing in this rule requires anyone to hire - or exclude - a particular individual contrary to their beliefs.

Opponents also claim that a federal law, the Religious Freedom Restoration Act (RFRA), is violated by the contraceptive-coverage requirement. Yet the requirement does not substantially burden the exercise of religion, despite attempts by Rep. Trey Gowdy (R-SC) to conduct a “legal analysis” by asking witnesses at the Issa hearing panel their thoughts on the question.

No matter how emphatic the claims to the contrary, providing preventive health services without cost sharing has nothing to do with the “exercise” of religion. Virtually all cases upholding RFRA-based challenges have focused on the practice of religious worship. The Supreme Court, for example, in Gonzales v. O Centro Espirita Beneficiente, upheld a RFRA-based challenge to the Controlled Substances Act, allowing a religious sect to drink an hallucinogenic tea as part of a ritual.  

Unsurprisingly, none of the Oversight Committee’s witnesses actually made a claim that any kind of sexual activity is central to, or even a part of, their worship or religious practice. In fact, the health needs addressed by the requirement have no relation to any recognized religious practice.

The test under RFRA is also a relatively high bar – to violate the law, a provision must “substantially” burden religious exercise. Even if the contraception requirement does burden “religious exercise,” the burden, particularly under the accommodation, is minimal.

First, the law does not compel speech. The limited instances in which the courts have found unconstitutional compelled speech are cases in which a speaker was forced to make a particular statement of belief.[i] As the California Supreme Court held, “Catholic [organizations’] compliance with a law regulating health care benefits is not speech.”

Nothing in the coverage policy requires the Catholic Church – or any religious institution – to articulate support for the government policy. This was true even in the absence of a modification for religiously-affiliated institutions, but the Administration’s new proposal allows these organizations to distance themselves even further by allowing them to opt out of notifying employees that coverage is available. Instead, the onus will be placed on insurance companies to reach out directly to employees – in lieu of the employer – when a qualifying institution refuses.

At the same time, religious institutions are free to speak out against contraception – priests may inveigh against birth control in sermons; and churches may publish anti-contraception broadsides. They may even indicate to one and all that the availability of coverage for contraception is not the organization’s choice, but the result of a government requirement.

Nor, contrary to allegations, does the policy interfere with the “internal governance of religious institutions.” The Bishops’ comments to HHS on the rule on this point quoted the Supreme Court’s decision in Kedroff v. St. Nicholas Cathedral for the proposition that churches can “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” But that case concerned an intra-church dispute within the Russian Orthodox Church regarding a disagreement about deference to differing church authorities.

The notion that government should not interfere in the inner workings of religious institutions regarding who has authority to speak on religious matters is obvious and non-controversial. It is also wholly irrelevant to the appropriateness of a neutral, generally applicable policy that affects all employers equally. Here, there is no governmental intrusion upon the internal doctrinal workings of the church. The government is not mandating that women be ordained as priests. It is not determining the proper relationship between cardinals and bishops. In short, the contraception requirement has nothing to do with church governance.

Under RFRA, even substantial burdens on religious exercise are permitted if they advance a compelling state interest. As we show in our comments to the rule , the no-copay-contraception requirement furthers several compelling governmental interests, including an interest in women’s health, children’s health, equality, autonomy, and the health and well-being of couples and families. Even a co-sponsor of RFRA acknowledges, that, in this instance, there are competing liberty interests. It should be axiomatic that the government has a compelling interest in both the health of its people, and in their freedom to direct their lives according to their own beliefs.

The government also has a compelling interest in ending gender discrimination. Title VII of the Civil Rights Act of 1964 stipulates that employers with fifteen or more employees may not discriminate in pay and benefits. In December 2000, the EEOC issued a holding that Title VII bars employer-sponsored health insurance plans that provide prescription drug coverage from failing to provide coverage of contraceptives.

In enacting the preventive services provision in the debate over the Affordable Care Act, Congress cited similar concerns about the inequitable cost burdens on women for needed healthcare. Sen. Barbara Mikulski (D-MD), the driving force behind the amendment, emphasized that “[w]omen of childbearing age incur 68 percent more out-of-pocket healthcare costs than men,” and noted that women “face gender discrimination.”

The courts have also agreed that eliminating gender discrimination is a compelling state interest. In Catholic Charities of Sacramento, Inc. v. Superior Court, the California Supreme Court held that a contraceptive-coverage statute “serves the compelling state interest of eliminating gender discrimination.” The court pointed to the same evidence as Sen. Mikulski: “women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care.” Such an interest has also been recognized in several other court challenges to plans’ failure to provide contraceptive coverage under Title IV, which bars gender discrimination. (A helpful analysis by the National Women’s Law Center of the EEOC decision and related cases is here.)

None of the pending legal claims, including the one filed by seven state Attorneys General, are sufficiently robust to survive a thorough legal analysis. The lawsuits brought by the Becket Fund and the Alliance Defense Fund are premature, and likely to be dismissed until the new policy has been finalized. Once the accommodation has been clarified by a rule, it will be clear that there is no First Amendment violation or other legal infringement, as explained at length above.

Separately, the claims brought by the state Attorneys General on behalf of several plaintiffs all turn on an assertion the policy is problematic “because it compels Plaintiffs to subsidize” coverage. But because the rule will explicitly require insurers to pay for the coverage and the policy will be revenue neutral even for insurers (as explained in the next section), there is no subsidy, and therefore no injury.

Some Catholic organizations have raised the specter of dropping all health insurance for employees to avoid complying with the no-copay-contraception; others have said they would rather face criminal penalties rather than follow the law. At a congressional hearing, for example, Christian Medical Association CEO David Stevens said dropping all health insurance coverage for all employees "would be something we have to consider," and Jane Belford, Chancellor of the Archdiocese of Washington, stated when responding to the pre-accommodation rule that although dropping health insurance was "unthinkable," the diocese would not obey the law extending contraceptive coverage to employees.

This refrain - that religiously objecting organizations will cut benefits unless it is given a special dispensation from obeying the law - is a common one. Ms. Belford previously threatened to cut off aid to 68,000 needy individuals, including one-third of Washington's homeless population, if the District of Columbia recognized gay marriages. And when a civil-union law went into effect, the Catholic Church displaced 350 foster children in its care and fired 58 employees in protest .

But in the present context, these threats are particularly hollow. In fact, numerous major Catholic-affiliated institutions already cover contraception. For example, the largest Catholic college in the U.S., DePaul University,includes contraception in its employee benefits, as do Marquette University and many other Catholic-affiliated institutions . Because 28 states already mandate birth control coverage, some of these institutions cover birth control to comply with state law. However, even these institutions could avoid the birth control requirement by self-insuring or dropping prescription coverage. Instead, they have prioritized the health needs of their female employees.

Indeed, the mere availability of a health benefit for those who may choose to use it does no violence to the beliefs of religiously-affiliated organizations. Indeed, the largest Catholic college in the U.S., DePaul University,includes contraception in its employee benefits, as do Marquette University and many other Catholic-affiliated institutions . Because 28 states already mandate birth control coverage, some of these institutions cover birth control to comply with state law. However, even these institutions could avoid the birth control requirement by self-insuring or dropping prescription coverage. Instead, they have prioritized the health needs of their female employees.

Those who are persuaded by the Bishops’ arguments that contraception is immoral or undesirable are free to ignore the benefit. But the 98 percent of Catholic women who have used contraception, and employees of objecting organizations who are not Catholic, should be entitled to make that choice for themselves, as a matter of their own beliefs and health.

As a general observation, religious employers (as well as non-religious ones) already cover health services to which they may, in principle, object. For example, Catholic employers’ health insurance plans may cover maternity care for unwed mothers or HIV tests without regard to sexual orientation; Mormon employers’ insurance may cover emergency services for injuries that happen to have been caused by reckless, alcohol-fueled behavior.

Indeed, the extent to which public institutions can claim an affiliation with religious groups is often less than obvious. Hospitals, for instance, including religiously-affiliated ones, take many more federal and taxpayer dollars than religious contributions, and are subject to generally applicable health, safety and licensing standards. And in many instances, the religious affiliations of organizations are quite tenuous. When a hospital in Arizona, St. Joseph’s Hospital and Medical Center, had its religious affiliation terminated several years ago due to a decision to allow doctor to perform a medically necessary abortion, news reports indicated that the only thing that changed was that Catholic mass could no longer be held at the hospital.

Putting aside the broad support for coverage on the part of Catholics (which in polls is the same as that of the general population) and its widespread use, even practicing Catholics have filed claims against institutions that fail to provide coverage for contraception, alleging that they are trampling both employees’ rights and federal anti-discrimination law. For just one example, among the witnesses at the Issa hearing was William Theirfelder, President of Belmont Abbey College, which has already brought a lawsuit against the policy. As Theirfelder indicated in his testimony, in 2007, eight faculty members at Belmont, including some Catholic professors, complained to the EEOC about a change in policy at the school to exclude coverage of contraceptives for employees.

At the time, a practicing Catholic and philosophy professor, Janette Blandford, indicated that her view that contraception should be covered differed from the Church’s position on the issue. (We only know her identity because Theirfelder revealed all of the names of the complaining employees in an email to faculty, students and staff about the case, a petty act of bullying that the EEOC found created a “chilling effect.”) In 2009, the EEOC issued a letter noting that Belmont Abbey’s failure to provide contraception coverage was in violation of the law against gender discrimination.

The Catholic hierarchy also has historically debated the question of contraception. Around the same time as the Supreme Court’s historic 1965 decision in Griswold v. Connecticut, which upheld the right to access contraception as within a constitutional “zone of privacy,” the Catholic Church was embroiled in an internal debate about whether contraception could be authorized. A secret international panel of conservative Catholics and theologians, as part of the Pontifical Commission on Birth Control, recommended overwhelmingly to rescind the ban because it was essentially an extension of the “rhythm” method already approved by the Church and “it is natural to man to use his skill in order to put under human control what is given by physical nature.”

As Catholics for Choice explains:

Lay members presented the findings of surveys they had conducted of devout Catholic couples about their experiences with the rhythm method; some of the women present testified about their own use of the method. What the commission heard challenged their thinking about the role of fertility and contraception within marriage. They heard that contrary to the assertion of the hierarchy that natural family planning brought couples closer together, it often drove them apart. They heard of couples who became obsessed with sex because of the unnatural restrictions placed upon spontaneous demonstrations of affection. And they heard women speak of childbearing as one of many roles they played as wives, mothers and partners and of the importance of the non-procreative sexual bond to marriage.

A recent blog post relates a short version of the story:

After the advent of the pill, Pope John XXIII appointed six lay people, referred to as the Pontifical Commission on Birth Control, to study the morality of birth control and population issues. The pope died that same year, and his successor, Pope Paul VI, expanded the Commission, adding a substantial number of clergy, including Cardinals, bishops, and priests, and appointed an executive committee of 15 bishops to construct the final report. The commission voted overwhelmingly to encourage the Church to rescind its ban on contraception and declared it not “intrinsically evil.” The final votes included “yeas” from 30 of 35 laypeople, 15 of 19 theologians, and 9 of 12 bishops (3 bishops abstained).

A minority report from dissenting members on the Pontifical Commission noted that a change in this policy would reflect poorly on the Church:

It should likewise have to be admitted that for a half a century the Spirit failed to protect Pius XI, Pius XII, and a large part of the Catholic hierarchy from a very serious error. This would mean that the leaders of the Church, acting with extreme imprudence, had condemned thousands of innocent human acts, forbidding, under pain of eternal damnation, a practice which would now be sanctioned.

When the encyclical Humanae Vitae was published by the pope in 1968, the teaching on contraception was unchanged. But the decision was not well aligned, even then, with the views of the laity. A report by Catholics for Choice cites contemporary public opinion surveys: “[b]y 1974, 83 percent of Catholics said they disagreed with Humanae Vitae” on the matter of contraception.

3) The Administration’s policy accommodation fairly balances the interests of employers and employees and is based on the economic realities of the insurance marketplace.

4) Birth control coverage is a mainstream and commonsense aspect of preventive care for women. 

5) Emergency contraception is essential to women’s health and is not an “abortion drug.”

6) Sterilization is a common form of birth control. Denying access, especially when it is medically recommended, can have devastating consequences.

7) Conclusion

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[i] For example, the Supreme Court struck down as unconstitutional a law requiring motorists to display the motto, “Live Free or Die,” on license plates. Wooley v. Maynard, 430 U.S. 705 (1977). Similarly, the state may not compel students to salute the flag or recite the Pledge of Allegiance. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).