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. 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. By 1789, every state except Connecticut had a constitutional provision protecting religious freedom. 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.
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.” “In matters of Religion, no man’s right is abridged by the institution of Civil Society.” 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.” 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.
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.” The Catholic Church also professes a duty unto God to feed the hungry, treat the sick, and care for the needy. 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.” 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. 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…” 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, 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.
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.
 103 Harv. L. Rev. 1409, 1421 (1990).
Id. at 1425.
 Id. at 1455.
 Id. at 1476.
J. Madison, Memorial and Remonstrance Against Religious Assessments, in 2 The Writings of James Madison 183, 184-185 (1785)
 Va. Bill of Rights of 1776, § 16.
 103 Harv. L. Rev. 1409, 1489-90 (1990).
Catechism of the Catholic Church § 2370.
 See, e.g., Matthew 25:40 (“whatever you did for one of the least brothers of mine, you did for me”).
 45 C.F.R. §147.130(a)(1)(iv)(B).
 See Barnes-Wallace v. Boy Scouts of Am., 275 F. Supp. 2d 1259, 1270 (S.D. Cal. 2003).
 Sherbert v. Verner, 374 US 398 (1963).
 103 Harv. L. Rev. 1409, 1516 (1990).