by Sean McGarvey
Amidst the fiery debates that had erupted at town halls across the country, President Obama convened a joint session of Congress in September 2009 to clarify his proposed health care reform and to quell the nationally widespread fear of socialized medicine. The President stated unequivocally to the American people that “nothing in this plan will require you or your employer to change the coverage…you have.” He went on to tout that the new law would require insurance companies “to cover, with no extra charge, routine checkups and preventive care, like mammograms and colonoscopies.” Later in the speech, he garnered thunderous applause when he assured, “And one more misunderstanding I want to clear up—under our plan, no federal dollars will be used to fund abortions, and federal conscience laws will remain in place.” The speech provided a roadmap for subsequent legislative debate and deliberation, which ultimately resulted in the passage of the Patient Protection and Affordable Care Act (PPACA) on March 23, 2010.
Almost two years later, it now appears that Rep. Nancy Pelosi was right when she famously told an audience of legislators that “we have to pass the bill so you can find out what is in it.” Late in the afternoon of Friday, January 20, 2012, the Department of Health and Human Services (HHS) issued a final ruling, interpreting PPACA to require nearly all employers to provide contraception and abortifacients at no cost to their employees as “preventive care.” The ruling also stated that “nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.” In other words, religiously affiliated schools, hospitals, and charities that do not offer contraception or abortifacients based on religious doctrine or religious convictions now have 19 months to figure out how to change those convictions in order to comply with federal law. Following an immediate backlash from Catholics and other religious leaders, the President responded on February 10 by shifting the requirement to provide free “preventive care” from religious organizations to their insurance companies. Under the guise of a presidential “accommodation,” the impact of the HHS ruling was largely left unscathed. Nonprofit religious organizations are still required to purchase contraceptive and abortifacient coverage for their employees because their insurance companies must provide such services at no charge. Contrary to President Obama’s 2009 promise, PPACA is requiring an employer to change the coverage it has.
The HHS ruling is particularly troublesome for two additional reasons. It unreasonably defines “preventive care” to include contraception and abortifacients. It also violates the free exercise clause of the First Amendment.
Preventive care, in the health care context, is synonymous with preventive medicine. Merriam-Webster defines “preventive medicine” as “a branch of medical science dealing with methods (as vaccination) of preventing the occurrence of disease.” [emphasis added] President Obama seemingly agreed with this definition in his 2009 speech when he suggested that preventive care included services like mammograms and colonoscopies: procedures that serve to detect and prevent the spread of cancer, a disease.
A reasonable definition of “preventive care” could encompass a broad range of medical services. Certainly, inoculations, screenings, and physical check-ups must be included. More generally, preventive care could include items like toothpaste, which helps to prevent diseases like tooth decay and gingivitis. Soap and shampoo similarly offer preventive care against the spread of bacteria and skin diseases like seborrhea (dandruff). So long as a procedure or medication is primarily aimed at the prevention of disease, it could be incorporated into a liberal definition of preventive care.
Contraceptives and abortifacients are not primarily designed to prevent disease, and are therefore not preventive care. Pregnancy is not a disease. In fact, the ability to get pregnant is indicative of fertility, which some consider to be a symptom of good health. While “preventive care” may be somewhat open to interpretation, it is widely understood in terms of preventing disease. Therefore, HHS overreached when it included contraceptives and abortifacients as preventive care.
Even if PPACA explicitly called for employers to provide free contraception and abortifacients to their employees, the law would still infringe upon the Free Exercise Clause of the First Amendment. According to the U.S. Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” [emphasis added]
America’s protection of the free exercise of religion long predates its Constitution. Many of the earliest settlers in the American colonies arrived in the hope of escaping the intolerant laws of the British Crown, which consistently trampled on the freedom of conscience.[1] In 1649, Maryland became the first of the original colonies to pass a statute that included a free exercise clause, coincidentally aimed at protecting Catholics from laws that may contradict their religious beliefs.[2] By 1789, every state except Connecticut had a constitutional provision protecting religious freedom.[3] When the original U.S. Constitution was drafted in 1787, states refused to ratify it without an added bill of rights. Chief among the rights to be protected was the free exercise of religion, guaranteed by the First Amendment.[4]
James Madison, the father of the American Constitution, wrote that the duty to the Creator is “precedent both in order of time and degree of obligation, to the claims of Civil Society.”[5] “In matters of Religion, no man’s right is abridged by the institution of Civil Society.”[6] Religion, according to the Virginia Bill of Rights and common understanding at the Founding, includes “the duty which we owe to our Creator, and the manner of discharging it.”[7] Not surprisingly, the framers of the federal Bill of Rights chose the words “free exercise of religion” in lieu of the proposed language “rights of conscience” to protect religious conduct as well as beliefs.[8]
This history and intent of the Free Exercise Clause is vital to understanding its applicability in the controversy over PPACA and the HHS ruling. The Catholic Church, as a matter of religious doctrine and duty unto God, labels any action that eliminates the procreative potential of sexual intercourse as “intrinsically evil.”[9] The Catholic Church also professes a duty unto God to feed the hungry, treat the sick, and care for the needy.[10] This duty cannot be isolated from the core religious beliefs of the Church. Catholics seek to fulfill this duty by establishing and managing hospitals, schools, and charities, which uphold Catholic doctrine and teachings. Therefore, when the law requires nonprofit religious employers to pay for free contraceptive and abortifacient coverage, it forces Catholics to violate their consciences and prevents them from fulfilling their religious obligations. The law prohibits Catholic organizations from freely exercising their religion.
Although PPACA and the HHS ruling exempt certain religious employers from the requirement to provide free contraceptive services, the exemption is narrow and unreasonable. For the purposes of the law, a “religious employer” is one that “primarily employs persons who share its religious tenets” and “primarily serves persons who share its religious tenets.”[11] This definition of a religious employer excludes Catholic hospitals, schools, and most social services simply because they employ and serve a high number of non-Catholics while fulfilling their religious duty. In fact, the definition is so narrow that it would qualify Mother Teresa’s Sisters of Charity as a non-religious employer because it almost exclusively serves non-Catholics in an effort to spread its religious message!
This narrow exemption not only defies common sense, but also contradicts other federal law, which has been so broad as to qualify Boy Scouts of America as a religious organization.[12] By most objective standards, Catholic hospitals, schools, and social services organizations are religious employers. If such employers only hired Catholics or only served Catholics, then they would fail to fulfill their religious duty to God. They would similarly breach their religious duty if they provided free contraceptives and abortifacients to their employees.
Forcing religious organizations to breach their sincerely held religious duties is an assault on the Free Exercise Clause, and is therefore beyond the reach of federal power. As Justice Brennan stated, “The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such… Government may neither compel affirmation of a repugnant belief…nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities…”[13] To require religious organizations to provide free contraception and abortifacients to their employees is to compel their affirmation of a belief that they find repugnant. Shifting the requirement to the insurance company is meaningless as it only disguises the cost that is inevitably borne by the religious employer.
The President should understand the inflexible bounds of the Free Exercise Clause. In a 1990 article published by then-editor of the Harvard Law Review, Barack Obama,[14] Constitutional scholar Michael McConnell examined the historical underpinnings and origins of the Free Exercise Clause. After a thorough analysis, McConnell concluded:
While the government is powerless and incompetent to determine what particular
conception of the divine is authoritative, the free exercise clause stands as a
recognition that such divine authority may exist and, if it exists, has a rightful claim
on the allegiance of believers who happen to be American citizens.[15]
President Obama should be faithful to his promises to protect federal conscience laws and to allow employers to keep their current coverage. Consequently, the Catholic Church and its affiliated organizations should remain free to be faithful to their religious doctrine. Only by protecting the free exercise of religion can our nation attain true social justice.
[1] 103 Harv. L. Rev. 1409, 1421 (1990).
[2]Id. at 1425.
[3] Id. at 1455.
[4] Id. at 1476.
[5]J. Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 184-185 (1785)
[6] Id.
[7] Va. Bill of Rights of 1776, § 16.
[8] 103 Harv. L. Rev. 1409, 1489-90 (1990).
[9]Catechism of the Catholic Church § 2370.
[10] See, e.g., Matthew 25:40 (“whatever you did for one of the least brothers of mine, you did for me”).
[11] 45 C.F.R. §147.130(a)(1)(iv)(B).
[12] See Barnes-Wallace v. Boy Scouts of Am., 275 F. Supp. 2d 1259, 1270 (S.D. Cal. 2003).
[13] Sherbert v. Verner, 374 US 398 (1963).
[14] http://www.nytimes.com/1990/02/06/us/first-black-elected-to-head-harvard-s-law-review.html?pagewanted=1&src=pm
[15] 103 Harv. L. Rev. 1409, 1516 (1990).
Law Journal for Social Justice 
Thank you for a thoughtful article. Two points: (1) birth control IS considered by the large segment of the medical community to have, if not the direct, then incidental positive health effects, including the reduction in incidence of ovarian cancer and osteoporosis; (2) to my knowledge there is not a basis to suggest that a law uniformly applied to all social participants, including its religious participants, must specifically account for their religious beliefs and sensitivity to behaviors. That is, if the law is neutrally designed and applied and does not specifically select among the religions, it is virtually always upheld as it fails to become a regulation of religion but a regulation of social or fiscal behavior, that may very well be incidental to religious thought and all related tasks and events. I am afraid you simply cannot have a state within a state. To the same extent that a religious organization may object to having to avert its eyes when one of its female employees receives that “ultimate of insults to human civilization,” the female employees may object to religious organizations receiving the benefits of charity exclusion from taxation while refusing to conform to the basic notions of contemporary human behavior. So, welcome to the 21st century. It’s nice here, we got iPods.
Ismael- I will not try and argue with what the broader medical community does or does not consider preventative care, though fitting birth control into that definition seems a stretch, but I don’t think that the uniform application of the law is the same as in other cases.
In the cases that talk about general laws uniformly applied the laws FORBADE action. For example, a law that outlawed polygamy and the use of certain drugs would be upheld because the law was restrictive. It seems to me that a law that requires and affirmative action is completely different. In that case not only is the government saying that the Catholic organizations not allowed to use their money for X it is saying they must use it for Y. Those are two different considerations.
In any case, under RFRA, which applies to federal actions such as this one, the government must show a compelling state interest. I doubt this would pass a compelling state interest test.
Good article.
“I am afraid you simply cannot have a state within a state.”
Yes, you can, 50 states plus 300 million. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So, welcome to the 21st century, where the 18th century Constitution is still valid. The president has overreached.
Call me stupid, but to me that is a distinction without a difference. What difference is there between slapping the wrist of someone who denies his employees a right, and affirmatively requiring that same person to comply with the duty to assure that right? Is there a practical difference between prohibiting discrimination on the basis of race and requiring public institutions to take in students of all colors? Either way, the effect is the same. An issue of the same general construct is at play here. The church argues that it should be permitted to refuse to pay for something that it objects to on moral grounds, and that forcing it to expend resources against its will violates its rights under the Free Exercise Clause. I would argue that the government by requiring the church to expend its resources does nothing more than prevent the church from inhibiting the rights of its employees to medical aids or a quality of life. And, by the way, I have a moral objection to paying taxes that go toward financing wars in my part of the world. That’s my conscientious objection – non-violence. But I don’t have a basis for relief.
In either case the argument is convoluted and I am not one to assume the role of a constitutional scholar. But my views are simple. So, the church objects to being forced to do something they will not voluntarily do. Perhaps that is of a sufficient legal distinction to warrant differential treatment, perhaps not. But if it is, the effect is to deny the hundreds of non-conscientious employees of religious institutions the right to behave PRIVATELY in a manner in which they are permitted by the society. The Catholic Church, for example, does not merely employ Catholics. It also employs medical, janitorial, accounting, and other staff through its charitable work, i.e., through its hospitals, who may have alternative views or no religious views altogether. That inhibits their right to choice a proper method of birth control, inhibits their right to a way of life, and may encourage abortions, by the way. Most importantly, it forces the religious views of the employer upon the employee. Now religious institutions for whatever reason, I certainly cannot find one in the Constitution, receive preferential treatment in our society. I don’t think asking them to avert their eyes to the same extent that I avert mine, and conform with basic social behavior would be asking too much.
Ben, I have no clue what you’re talking about. I was making a (poor) attempt at a joke about the Vatican.
Would prefer to stay in the 21st century anyway. But thanks for the invite. I don’t have to feed my car and my carriage runs on its own. The music is much better and portable. And have you heard of deep fried twinkies? Those are crazy good!
The flaw in your logic is that you assume that the First Amendment creates an impenetrable rule that a law cannot be Constitutional if it infringes on the free exercise of religion. However, as with almost every other Constitutional right, the First Amendment does not create an impenetrable rule. The First Amendment is always subject to a policy balancing test.
Freedom of speech does not give you the right to yell “fire” in a crowded theater. Freedom of the press does not give the New York Times the right to print libelous articles. And Freedom of religion does not give any Church the right to do anything it likes under the guise of religious freedom.
Members of the Native American Church don’t get to avoid bans on peyote or marijuana. Members of the Amish or Mennonite religions do not get to avoid traffic regulations (requiring colorful signage on their buggies) or farm regulations (banning the sale of raw milk or foods). Religious hospitals, including Catholic hospitals, must provide a full range of services (including contraceptives) to a full range of patients (including gay patients, adulterers, and any number of other social groups officially disapproved of by the Church).
The mere fact that the Catholic Church disapproves of contraception is an insufficient reason to invoke the First Amendment. The policy balancing test in this case is pretty clear given how out-of-touch the Catholic Church’s position is with main-stream society, the minimal invasion of requiring insurance companies to provide non-Church employees with an option, and the known benefits of both approved and off-label uses of birth control.
“But if it is, the effect is to deny the hundreds of non-conscientious employees of religious institutions the right to behave PRIVATELY in a manner in which they are permitted by the society. The Catholic Church, for example, does not merely employ Catholics. It also employs medical, janitorial, accounting, and other staff through its charitable work, i.e., through its hospitals, who may have alternative views or no religious views altogether.
The Catholic Church isn’t trying to prevent private citizens from using birth control; they just don’t want to be part of the supply chain. In the Church’s view, the use of contraceptives and abortifacients is a violation of natural law. They don’t want to be complicit in promoting their use. Those employees could purchase supplementary insurance or buy birth control out-of-pocket. They could also choose not to work at a Catholic institution.
Where I think you’re on stronger ground, Ismail, is on the point that birth control does not just have one medical application. The “pill” has other clinical uses, even though it may have been developed for contraceptive use. To deny anyone those benefits, because the pill has one use among many that is objectionable, is unjust. That being said, the Catholic Church isn’t seeking to deny anyone the use of birth control; they just don’t want to subsidize it.
Regardless, I wish the Church would come to the realization that their quarrel is not with with a chemical substance, but with one of its particular uses. No religious exception from a federal regulation is going to convince millions of Americans not to use birth control. Winning that battle and fighting the Obama administration are not the same thing.
This is a challenging issue for any person of conscience, whether Catholic or not.
Maybe a workaround is get a religious exception so that Catholic institutions don’t have to purchase insurance that covers the “pill” for contraceptive use, but still requires coverage for the “pill” when prescribed for non-contraceptive purposes. I would guess doctors would circumvent that rule by always prescribing birth control while citing its non-contraceptive properties. As it turns out, sometimes federal regulations that restrict individual freedom simply are not workable – someone should share that bit of revelation with conservatives.
The Catholic Church does already acknowledge that there are legitimate uses of oral contraceptives (which, at their most basic form, are simply female sex hormones delivered at specific doses in a specific order). The Church has explicitly and repeatedly stated that the law of double effect applies to oral contraceptives, meaning that a woman is free to take these medications for legitimate medical purposes (polycystic ovarian syndrome being a common example) with no moral implications whatsoever. That these medications also have the side effect of preventing fertility is perfectly acceptable, and the Catholic Church has no problem with this at all. They even will take it a step further and say that it is morally acceptable to give a pregnant woman chemotherapy to fight cancern, even knowing that the chemo will also cause an abortion.
I get that, Chris, but they still don’t want to cover oral contraceptives in the insurance plans they purchase for their employees.
They are already a part of the supply chain. As you’ve pointed out, they pay their employees wages, which those employees commit to buying a contraceptive aid. The concern boils down to objecting to being forced to supply the same aid by more direct means. If that is the objection, then no one is asking churches to provide contraceptives at their doors, or to advertise doing so, or even to like it. They are merely asking them to comply with the same rules as apply to the whole society. If a religious institution was to argue that it should be permitted to reduce compensation to its employees by that portion which an employee would on average annually commit to contraceptive purchases, there would have been no argument. We would all just have a laugh and move on. But take it at a step removed, and, suddenly, it is a controversy.
To the same extent that you may raise the point that employees have the choice of conscientious and non-conscientious employers, I would argue that employers have a choice of relationships, independent contractor being a viable alternative. Having chosen to benefit from the employee’s efforts and the ability to manage and control the means and manner of his work, the employer must provide the associated obligatory dignity. If you take this conscientious objector argument to its logical extreme, then what is the point of having a state in the first place? If I someday start a Church of Docile People (catering only to those who love leather couches and hot pockets, and abhor violence), should I be permitted to refuse to register with the selective service, or enlist in the event of a mandatory conscription, or pay taxes when the United States starts another war abroad? No! That’s absurd. My personal beliefs, no matter the conviction, do not entitle me to void a social contract I signed with this country. So why should my personal beliefs entitle me to void a universally applied non-discriminatory law?