By K. Hollyn Hollman, BJC General Counsel
The constitutional challenge to the Affordable Care Act is clearly the biggest story in the ongoing national health care debate. A significant subplot, however, is the implementation of rules requiring contraception coverage in health insurance plans as applied to objecting religious employers. This issue, described by some as evidence of a war on religious freedom, left the front pages after the Obama administration announced broader accommodations for religious institutions in early February. Still, some controversy continues.
As some opponents of the Obama administration’s contraception mandate claim a religious freedom crisis, others worry that religious accommodations threaten an important aspect of preventive health benefits. As the BJC monitors this issue in an effort to protect religious freedom for all, here are some things to keep in mind.
1) Though this debate may be politicized, there are important substantive concerns on both sides to recognize. There is widespread consensus among medical experts that contraception is an essential component of comprehensive preventive health care for women, who comprise 47 percent of the American workforce. Availability of preventive services, including contraception, lowers overall health care costs, rates of unwanted pregnancy, and risks associated with medical conditions unrelated to reproduction. At the same time, some employers have sincere religious objections to contraception and therefore understandably oppose providing it for their employees. For these employers, the mandate is a fundamental matter of religious liberty.
2) Broadly speaking, our country’s commitment to religious liberty means protecting the rights of individuals and faith communities to believe and practice their religion as they see fit, while keeping the government from advancing or inhibiting religion. Of course, conflicts arise between religious freedom claims and other valid governmental interests. While religious liberty is among our most cherished constitutional guarantees, religiously motivated objections to laws do not automatically override them.
3) Context matters. The First Amendment’s Free Exercise Clause and the Religious Freedom Restoration Act provide a legal framework to resolve conflicts between religious liberty rights and other governmental interests. The proper analysis weighs the extent of the burden on religion, the governmental interests at stake and the available means of reconciling competing concerns. In the example of the contraceptive mandate, the goal should be accommodating conscience objections without harming the rights of third parties — namely, women employees who desire coverage.
4) The size and complexity of the health care legislation make this contraception issue especially difficult. Persuasive analogies are hard to come by, and uncertainty remains about the implementation of health care reform in general. Aspects of the law are pending in the U.S. Supreme Court, including the question of severability — if one part of the law is found unconstitutional, whether the rest remains or falls with it.
5) Implementation of health care law depends on the regulatory rulemaking process, which is still underway. In March, the Health and Human Services Department (HHS) issued an “Advanced Notice of Proposed Rule-Making.” The administration explained its desire to accommodate nonprofit religious organizations’ religious objections to providing contraception coverage while assuring that employees of such organizations receive coverage without cost-sharing. HHS invited comments from stakeholders to develop alternative ways of meeting these goals, specifically acknowledging concerns about self-insured employers, the interplay between existing state laws and federal regulations and conscience claims that arise only with respect to certain methods of contraception.
6) Some opponents will proceed with litigation challenging the mandate on constitutional and statutory grounds, regardless of efforts to accommodate conscience objections. Since November 2011, at least nine lawsuits have been filed, including several brought after the expanded accommodation was announced in February. The plaintiffs in these cases represent various perspectives: religiously affiliated colleges and universities, both Catholic and Protestant; a religious broadcasting network; a pro-life Catholic nonprofit organization; attorneys general from several states; and a private business owner.
These observations illustrate the intricate and evolving nature of this issue. We do not always get the church-state balance right in this country. Doing so requires sensitivity to diverse claims, hard work and smart advocacy. Our legal system’s willingness to accommodate religion without advancing it is an important hallmark of our commitment to religious liberty. When it comes to health care — and any other political debate — that commitment must prevail.
