by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law
The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.
The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.
With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”
Unfortunately the contraceptive mandate debate has unfolded as a war between religious freedom on one side and women’s equality on the other. The president’s repeated efforts to compromise with religious advocates who refuse to budge from their absolute moral stance have only strengthened that perception. From the start, the administration should have insisted that the religious freedom of millions of Americans depends upon the enforcement of neutral laws and not the exemption of some religions from the law’s requirements. The president should not have conceded the moral and religious high ground to the opponents of reproductive freedom.
Duncan’s statement that the new rules do “nothing to protect the religious freedom of millions of Americans,” of course, was referring to the religious freedom of the employers, the churches, schools, universities, hospitals and businesses -- Belmont Abbey College, the University of Notre Dame, Catholic Charities, Hobby Lobby, or Domino’s Pizza -- who morally oppose contraception and sterilization for themselves and everyone else. That emphasis ignores the religious freedom of the employees and millions of other Americans to have the civil laws enforced. Their freedom lies with the mandate.
The constant focus on the employers’ religious freedom has overshadowed concerns about individuals’ freedom of conscience. On the employee front, many women of faith disagree with their employers about the morality of contraception. The Constitution protects their reproductive choice and the Affordable Care Act provides their insurance coverage. To exempt women’s employers from the statute because the employers believe women should not have that freedom infringes upon employees’ religious liberty.
The freedom-of-conscience arguments also favor employees over employers. The Free Exercise Clause does not entitle institutions or individuals to exemptions from the law whenever it contradicts their moral beliefs. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” It is dangerous to concede that religions don’t have to follow any law they find offensive and to let religious organizations absent themselves from the rule of the law.The law of the land is the Affordable Care Act even if some religious organizations think it should be otherwise.
Granted, the First Amendment allows the government to accommodate religion by exempting it from the law’s requirements. The Establishment Clause, however, holds that accommodation becomes unconstitutional when it favors religion and gives it special treatment. The special treatment here is especially troubling as it gives employers license to undermine reproductive freedom. It is unseemly to watch the government repeatedly retreat from its laws under pressure from church authorities who cannot speak for all of their members. Such fusion of religion and government is exactly the type of coalition that undermines the rule of law and imperils individual freedom. Millions of Americans’ religious freedom is protected by the reign of religion-free law, not by the exemption of religious interests from the laws that should govern everyone.
If the Massachusetts and California courts had bought the broad argument that the First Amendment shields the churches from any law they find morally offensive, the evidence of child sexual abuse would still be buried deep in church files. There as here, the religious freedom of millions of Americans depends on not letting the churches push the government to draft the laws in a way that favors churches.