Although the 2012 Presidential election settled many issues related to the health care law, there is one that will linger well into President Obama’s second term: contraception and religious freedom. The Affordable Care Act (ACA) requires employers to provide women with cost-free coverage for preventive care and screenings. The Obama administration interprets this provision to require coverage of sterilization and the full range of contraceptive methods approved by the US Food and Drug Administration, including emergency contraception—an interpretation that has been under attack.
When the Catholic Church and other religious groups claimed this rule violates their freedom of religion, the Obama administration agreed to grant a “safe harbor” exemption to church-affiliated hospitals, schools, and other religiously affiliated employers. In such cases, contraceptive coverage would be offered to women directly by the employer’s insurance company, “with no role for religious employers who oppose contraception,” the administration said.
Despite this compromise position, more than 35 lawsuits have been filed challenging the rule as a violation of the Religious Freedom Restoration Act of 1993, which prohibits the federal government from “substantially burdening a person’s exercise of religion” unless it advances a compelling government interest and is the “least restrictive” means of achieving it. The lawsuits fall into 2 categories: those filed by religious and nonprofit groups that qualify for the temporary “safe harbor” and those filed by private for-profit employers with no religious affiliation.
In October, a federal district court in St Louis dismissed a lawsuit filed by a secular mining company owned by a Catholic businessman, which claimed that the ACA rule forced it to cover contraception in violation of its religious freedom. In its ruling, however, the court said that such coverage represented only a trivial and remote imposition on the employer’s religious freedom. The 1993 Act, the court said, “does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.”
Despite this rebuke, it looks like the legal challenge will receive serious judicial attention. Two district courts have granted preliminary injunctions to block the contraception rule as applied to secular companies. Although these courts did not indicate which way they might adjudicate on the merits, they said that even a minor impairment to religious liberty could cause “irreparable harm” on private companies. The Justice Department announced that it would not object to the case being heard by the Fourth Circuit Court of Appeals based in Richmond, Va.
The multiple challenges to the contraception rule, moreover, almost ensure the issue will come before the Supreme Court. Like the individual mandate case recently decided by the Supreme Court, the conservative strategy of forcing a split among the circuit courts could signal that the case will come before the highest court by 2014.
What are the merits of the claim that the contraception rule does violate religious freedom? To begin with, secular employers are just that, not religiously affiliated. They are providing a benefit (health insurance) to employees for which they receive handsome tax privileges from the government. A requirement to cover certain services neither prevents employers from practicing their religion nor does the negligible financial contribution towards women’s health coverage significantly burden the employer’s freedoms. Suppose, for example, a secular employer objected on religious grounds to covering a blood transfusion or other life-saving treatment? Would it be permissible for the employer to refuse to cover that service? If so, it would undermine the major purpose of health insurance.
Even if employers could justifiably claim that paying for contraception coverage did violate their constitutional freedoms, it would need to be balanced against the women’s freedom to have control over their own bodies and reproductive health. By refusing to cover contraception, employers are, in effect, imposing their religious beliefs on their female employees. The Justice Department’s position in these cases is that the federal government has a “compelling” interest in mandating contraception coverage: to improve the health of women and children and to promote greater gender equity. Women’s health needs are different from men’s, and many women may not be able to pay for contraception services. No such restriction is posed on men. Contraception coverage, moreover, enables some women to pursue their careers and serve productively in the workforce.
The question for the courts, and for the body politic, is whether a purely secular employer (say, a hospital, public school, or car company) can impose its will on female employees who are seeking to exercise their fundamental reproductive freedoms. That is a question with which the Supreme Court will likely grapple. But the Court will also likely have to decide the challenges of truly religious organizations, which claim that forcing their insurers to cover contraception still encroaches on their religious freedom. Even though the funds flow from insurers, could church-affiliated entities (eg, Catholic universities) successfully claim that there remains a fundamental violation of their rights?
We all may have thought that the Presidential election and Supreme Court case on the individual purchase mandate settled most aspects of the ACA. But the battles will certainly continue—both politically and judicially.
About the author: Lawrence O. Gostin, JD, is University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, and Director of the World Health Organization Collaborating Center on Public Health Law and Human Rights.
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