Thursday, Aug. 21, 2014
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by Paul Rasor, Center Director
The Patient Protection and Affordable Care Act (ACA) requires that employers who offer health insurance must cover a range of preventive services for women, including contraception. Since November 2011, dozens of lawsuits have been filed against the ACA, charging that the contraception mandate violates the religious freedom of certain religiously affiliated employers. These cases are unaffected by the Supreme Court’s ruling in June 2012 upholding the constitutionality of the ACA.
What’s going on here? Does the ACA constitute a serious threat to religious freedom, as some religious employers have charged? Or do the lawsuits create a threat to women’s preventive health care, as others have claimed?
It will help understand the issues if we keep in mind the deeper concerns of those on both sides. First, there is widespread agreement among medical professionals and health care experts that contraception is an essential part of comprehensive health care for women. Contraception reduces the rate of unwanted pregnancy and lowers health risks unrelated to pregnancy. It also lowers overall health care costs. More than this, access to contraception is a fundamental constitutional liberty and a critical component of women’s well-being. As the Supreme Court itself has recognized, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
On the other side, some employers have sincerely-held religious objections to contraception and see the mandate as a serious infringement of their religious freedom. Catholic institutions have argued that the mandate forces them to act contrary to Church teaching on contraception. Some Evangelical Christian institutions and private employers object that the mandate includes FDA-approved forms of emergency contraception, such as the morning-after pill, which they consider to be abortion-inducing drugs.
Finally, in an effort to accommodate these concerns, the ACA exempts from the mandate employers such as churches, mosques, synagogues, and other religious institutions that primarily employ and serve people of their own faith. However, religiously affiliated institutions that employ and serve people of many different faiths – such as hospitals, schools, and social service providers – are not exempt. It is primarily these institutions that have challenged the contraceptive mandate.
The lawsuits are based on the religious freedom guarantees of the First Amendment and the federal Religious Freedom Restoration Act. Ironically, perhaps, the First Amendment claim is the weaker of the two. The Supreme Court has ruled that the Free Exercise clause does not provide a religious exemption from neutral laws of general applicability. There is no question that the ACA’s contraception mandate is of this type. It applies to the vast majority of employers in the U.S., and its goals are entirely secular in nature – enhancing women’s health and reducing health care costs.
The RFRA, in contrast, does create religious exemptions to laws of general applicability, but only if they impose a “substantial burden” on the exercise of religion, and then only if the government cannot demonstrate that the law furthers a “compelling governmental interest” using the “least restrictive means.” It is questionable whether the mandate imposes a substantial burden on religious exercise. The ACA does not require anyone, employer or employee, to use or endorse the use of contraception. Decisions about contraception are made by individual employees, many of whom will not share the employer’s faith. Indeed, allowing employers to exclude contraception from their plans would mean imposing the employer’s religious values onto their female employees. The right of free exercise does not go this far. As one prominent First Amendment scholar has observed, “Religious liberty simply does not entail a right in religious employers to force their employees to observe and to pay the costs of anti-contraception beliefs that the employees do not share.”
At the same time, several compelling interests are furthered by the contraception mandate. These include improving the health of pregnant women and newborn children, lowering the cost of employer health care plans, and reducing inequalities in the workplace and in health care costs between men and women.
The Supreme Court has yet to consider these important issues. However, the vast majority of lower federal courts that have ruled on the matter have upheld the contraceptive mandate against these challenges, concluding that the ACA does not present a serious threat to religious freedom. In my judgment, these rulings are correct.
A program examining the ACA will be held on March 7, 2013. See the story on page 1 and the calendar of events in this issue.