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.
Unlike many places in the world in which religious law either predominates, or in which religious law pertaining to personal matters exists alongside a civil code, America is not – even partially – a theocracy.
Nor has it ever been. Its history and constitution appropriately preserve a wide swath of authority for both religions and religious people in matters concerning the internal workings of churches, mosques and synagogues and the exercise of religious rituals. But when it comes to public life, we generally preserve a neutral posture towards religion in order to allow believers of many faiths, and non-believers in any faith, to work and live alongside one another under a common government.
This arrangement often requires mutual tolerance of differences and practical accommodations of a variety of views. It requires clear demarcations for individual freedoms. And it requires respect for a necessary zone of privacy so individuals can wrestle with moral questions in the quiet of their own conscience. Not all of these decisions will be consistent with the views of people of faith. But it is fundamental to the American identity that they are freely chosen, within the parameters set by the body politic acting for all the people.
There is no purity in such an arrangement for those who live in this pluralistic society. For example, religious organizations cannot control what employees do with their paychecks even if they are paying the salary. They cannot control who moves in next door, even if those neighbors engage in activities that offend. They cannot discriminate when hiring for non-ministerial positions, even within a house of worship. They cannot deface billboards without sanction, even if the images are directly contrary to their beliefs.
And they cannot use their beliefs as a sword — using their faith as grounds to deny the right of another person to make their own decisions. Religious liberty, as it has been recognized by courts in constitutional deliberations, does not mean the liberty to impede others, particularly in public-facing institutions. The issue raised by this debate is not, in fact, whether religious liberty should be protected — but whose religious liberty deserves the protection of law.
The U.S. has a proud tradition of defending the right of the individual to moral self-determination in both religious and secular matters. The Obama Administration’s accommodation allows employers that object to providing coverage for contraception to avoid both paying for and communicating about that coverage, while ensuring that employees have the same benefits as those that are generally available to others. This is a fair and workable balancing of interests and should have ended the controversy.
But that didn’t happen. Opponents of this balance ask us to forsake every individual’s moral and religious liberty — as well as control over our personal lives and health. Congress is currently contemplating bills and amendments that would create a far-reaching power — on moral or religious grounds — to foreclose every person’s access to the benefits of living in a free and open society. These bills would give state sanction to religious principles, and thereby trespass on the religious liberty of individuals that is essential to our history.
This would allow petty tyranny to triumph over autonomy, gender discrimination to prevail over equity, and institutional prerogatives to invade the zone of private decision-making around every woman’s and family’s decision to have a child or what treatment is needed for a life-threatening illness such as HIV.
Employees would be forced to cede to their religious conscience rights to their bosses. Employers could deny neonatal benefits to gay and lesbian employees or to a mother whose child was born out of wedlock. Christian Scientist churches would be entitled to deny all medical coverage except spiritual care if they chose to do so.
It would encode in law a chaos of preferences — empowering unsympathetic administrators to control intimate and critical matters of bodily integrity and health best left to women and their doctors. It would treat employees reporting for a job as unwitting volunteers for whatever religious precept might be subscribed to by the organization’s leaders. Even more fundamentally, such a move would threaten the religious pluralism that is an essential part of the American tradition, by allowing quintessentially public functions to be subordinated to religious aims.
The courts have been very clear and logical in striking this balance. Generally applicable laws do not violate the First Amendment because they are the sine qua non of governing an ordered society. Religious organizations, when acting in their religious role or on matters of internal governance like they do in houses of worship, receive considerable deference from the courts — although even organizations like churches are subject to many generally applicable laws, such as health and safety rules, or building codes.
But institutions that voluntarily assume a public role, including those with religious affiliations, are 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 assign themselves a mission that is not primarily religious in purpose or goal.
The significance of this issue for health and well-being cannot be overstated. The availability of effective, modern methods of contraception allows individuals the freedom to plan their lives, preserves dignity in one’s personal relations, and has been fundamental in facilitating the full participation of women in public life by allowing them to better plan their pregnancies and lives.
Access to effective and affordable birth control is important for many medical reasons impacting women’s health: it sometimes even saves their lives. But if contraception is too expensive or not easily accessible, women fail to use it regularly. Today in the U.S., nearly half of all pregnancies are unintended. This high rate has tragic consequences for maternal and child health, and increases the number of abortions.
This shocking state of affairs can be greatly remedied by allowing women far greater access to the most effective forms of contraception, including long-acting forms and sterilization. The Administration’s policy accomplishes these important goals.
It is essential that we make these benefits available equally to all members of the public, as part of a new baseline for public health. And it is essential, on principle, that on matters of public health and personal decision-making, we ask that all public-facing institutions offer the same benefits to workers, rather than creating a patchwork system of gaps and exceptions that perpetuates gender discrimination and harms women and families.
Against this backdrop, the Administration’s accommodation appears generous indeed. Employers won’t have to pay for contraception or even communicate about it. No one is compelled to use the benefit or pay for contraception under the policy, and no provider is compelled to furnish services. It will remain the employee’s decision to make concerning what is right for them and their family, as it should be. Both fairness — and our constitutional tradition of respect for individual religious liberty — demand no less.