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.
At a now-infamous congressional hearing on February 16, the Republican-controlled Committee on Oversight and Government Reform of the House of Representatives assembled a predominantly male cast of religious leaders to opine on issues of religious freedom ostensibly threatened by the contraceptive coverage requirement. In framing the topic, Chairman Rep. Darrell Issa (R-CA) strained the limits of credulity by insisting that women’s health and reproductive rights were outside the scope of the hearing.
But contrary to Rep. Issa’s assertions, religious liberty, as it has been recognized by courts in constitutional deliberations, does not mean the liberty of employers to abridge their employees’ religious rights, particularly in public-facing institutions. For that reason, women’s health – and the notion of a private zone of decision-making that protects the rights of workers at public-facing institutions – should have been precisely the question considered by Congress. The issue raised in this debate is not whether religious liberty should be protected, but whose religious liberty the law should protect.
Despite misleading assertions by witnesses at the Issa hearing, in a diverse and pluralistic society governed by democratic laws, religious authority is not an absolute. For example, religious organizations cannot control what employees do with their paychecks even if they are the ones paying the salary. They cannot control who moves in next door, even if the neighbors engage in activities that offend. They cannot discriminate when hiring workers for non-ministerial positions, even within a church. They cannot deface billboards, even if the images are directly contrary to their beliefs.
There are limits, and for this reason, it is essential that one not confuse “a war on  religion with not always getting everything you want .” Indeed, without such limits, the government’s actions would violate the First Amendment’s Establishment Clause by supporting, with government action, a particular religious view.
The flip side of the Establishment Clause is the Free Exercise Clause, which ensures that religious individuals retain the freedom to practice their religion. In resolving these sometimes competing interests, the courts have generally sought to strike a balance between respect for the internal decision-making authority of religious institutions and the democratic values reflected in requirements imposed upon public institutions.
This careful balancing act is structured into our Constitution. Interestingly, as noted in a recent analysis by scholars at the Brookings Institute, the Framers of the Constitution considered – and rejected – specific constitutional protection for conscience rights:
Madison’s original draft of what became the First Amendment would have protected “the full and equal rights of conscience.” By the close of the House debate, the language included protections for both the free exercise of religion and rights of conscience, implying a distinction between them. After moving back and forth between these two formulations, the Senate ultimately selected religious free exercise, which became the language sent to the states for ratification.
So how does the free exercise clause operate in practice? As a first principle, generally applicable laws – even those with an incidental effect on religion – do not violate the First Amendment because they are the sine qua non of governing an ordered society.
In the key constitutional case on the question, Employment Division v. Smith, the Supreme Court rejected the claim of Native American Church members whose sacramental use of peyote disqualified them for unemployment benefits. Writing for the Court, Justice Scalia explained that a neutral law of general applicability that happens to burden one’s religious practice does not violate the Constitution because “[t]he government’s ability...to carry out...aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” The alternative is to permit every religious objector to “become a law unto himself” – a result which “contradicts both constitutional tradition and common sense.”
Other cases make clear the balance of interests when religious institutions – rather than individuals – are involved. Religious organizations, when acting in a religious capacity or deciding matters of internal governance – as is the case with houses of worship – receive considerable deference from the courts. But institutions that voluntarily assume a public role,including those with religious affiliations, are, generally, subject to the same laws as everyone else. Those institutions have chosen to primarily employ members of the general public, to primarily serve the general public, and to assign themselves a mission that is not primarily religious in purpose or goal.
Because we do not go to a hospital for a sermon, but rather for medical care, and because the employees of that hospital are there for work, and not worship, the test is reasonable. The issue is one of fairness: public-facing institutions must follow the law and abide by the same rules as everyone else with regard to their workers’ rights and consciences.
The fact that a religious conviction leads adherents to perform acts of public service, such as founding hospitals or soup kitchens, does not mean that the hospital or kitchen itself is any more exempt from generally applicable regulations than a hospital or soup kitchen founded by atheists. Such a rule would unfairly advantage religious institutions over nonreligious institutions, in violation of the Establishment Clause. Instead, where a religious institution decides – for whatever reason – to provide a public service, it is subject to the same rules that govern nonreligious public-service providers. The alternative would mean that food-safety laws would not apply to kosher butchers, that child-safety laws would not apply to church-affiliated daycare, and that building codes wouldn’t apply to the construction of churches and mosques. In short, allowing an institution’s motivation to subject it to a lesser set of regulations is a recipe for chaos.
Finally, it should be noted that the objection of some religious institutions to the contraceptive-coverage rule is nothing new. Indeed, religious institutions serving the public have long decried as a violation of religious liberty a host of laws designed to promote gender and racial equality. In the 1960s, for example, some religious groups attacked enforcement of the Civil Rights Act of 1964 prohibiting racial discrimination in public accommodations. And in the 1980s, Bob Jones University – which opposed interracial dating – unsuccessfully sought an exemption from the law prohibiting tax-exempt schools from engaging in racial discrimination. Other religiously affiliated institutions sought to give special benefits to male employees on the grounds of a supposed Biblical command that men be the heads of households.
Religious institutions’ current opposition to extending contraceptive coverage to women is, sadly, in line with these previous, now-discredited, positions. The policy is a remedy for discriminatory practices that both exclude women’s health care from coverage and increase costs for services that only women need.