Still hoping for change on religious freedom

Monday is the last day for public comment on the federal regulation that would force virtually all employers nationwide—including religious … Continued

Monday is the last day for public comment on the federal regulation that would force virtually all employers nationwide—including religious charities, schools, and hospitals—to facilitate and fund insurance coverage of sterilization, contraception, and drugs that can cause abortions.

Even those who embrace these drugs and procedures should recognize the mandate’s threat to religious liberty and consider filing a comment in opposition while there is still time. It is one thing to support sterilization, contraception, or chemical abortion; it is quite another to support the government’s coercing others—even over their conscientious objection—to pay for them, or otherwise to help their employees to obtain them. That is the difference between a simple dispute over health care policy, and one over our nation’s First Freedom, religious liberty.

Thankfully, many have already recognized this fundamental problem and taken action in dramatic fashion. The mandate has triggered the largest wave of religious freedom litigation in our nation’s history: to date, fifty-three civil rights lawsuits have been filed on behalf of over 160 plaintiffs, and the numbers continue to grow. The mandate has drawn not only the most public comments of any regulation under the Affordable Care Act, but, according to the Sunlight Foundation, “more comments than any other regulatory proposal on any subject government-wide.”

Some mistakenly think this issue has been resolved—that the administration’s recently offered compromise would let objecting religious ministries avoid the mandate. Would that it were true.

Alas, the most recent rule does nothing for people of faith who run for-profit workplaces. The mandate continues to apply there without exception, or even the pretense of one. It is unconscionable for the federal government to force religious people to check their deeply held beliefs at the door as they enter the world of commerce. These days, our business sector needs to be informed by more moral reflection, not less.

The latest proposal also maintains an absurdly narrow exemption for “religious employers,” still omitting most institutions that are unmistakably “religious” and unmistakably “employ” people. Recent changes are only cosmetic. Even the proposed rule itself acknowledges that its changes would “not expand the universe” of exempted employers beyond their original target, mainly “houses of worship.”

Finally, the proposed “accommodation”—that is, what the government would offer instead of an actual exemption to those actual religious employers that the government refuses to recognize as such—might look good at first, but ultimately disappoints.

For “accommodated” employers, the health insurance they offer their employees need not include the objectionable services. Yet these same employees, whether they like it or not, are automatically enrolled in a separate policy that covers only sterilization, contraception, and abortifacients. The rule implicates the employer because its decision to provide health coverage is necessary for the employees to get the contraceptive-only coverage; if the employer doesn’t provide the main policy, the employee doesn’t get the separate one. So the employer’s decision to provide health insurance effectively hands the employee a ticket to free coverage of drugs and procedures to which the employer has serious religious and moral objections. That’s a big problem for both insured and self-insured plans.

There’s an additional problem with insured plans. The separate contraception-only coverage costs an insurance company money, which has to come from somewhere. The proposed rule says that the money won’t come from employer premiums, but based on the government’s own theory of how the separate coverage gets financed, that’s exactly what would happen.

HHS believes that providing free sterilization, contraception and abortifacients would reduce costs in the employer’s main policy, on the theory that there would be fewer pregnancies, in turn reducing claims against the main policy for pre-natal care, childbirth, and pediatrics. But if the main policy actually does experience these cost savings—and that’s a big if—they would ordinarily be passed on to the employer through lower premiums in the future. If, instead, HHS requires those savings to be passed on to the separate contraception-only policy, then the employer is simply being overcharged on its main policy in order to pay for the objectionable services.

In short, there are still major religious freedom problems with the mandate, even in its latest version. All Americans should be concerned to make sure those problems get fixed. Monday is the last day to have your voice heard.

Mary Ann Glendon is the Learned Hand Professor of Law at Harvard Law School.

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  • UpperLeftCorner1

    So, if an employer is a member of a sect that doesn’t believe in blood transfusions (i.e. Christian Science, Jehovah’s Witness) is their religion infringed if in the insurance that is part of their employee’s compensation blood transfusions are covered?

    If you don’t want a blood transfusion or want to keep popping out babies like an oversexed rabbit, have fun. But your employees’ labor and brains are what pays for the insurance that they receive as part of their compensation. Stop trying to impose your religion on your employees.

  • FYIColumbiaMD

    There are other laws that infringe much more clearly on religious freedom – and the Court has routinely upheld them.

    For example, if your religion believes that the mixing of the races is immoral or it believes that women can never be placed in authority of men, you are still required to obey anti-discrimination laws with respect to hiring in your private business.

    As Justice Frankfurther noted (in Minersville School Dist. Bd. of Educ. v. Gobitis):

    “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

    Or as Justice Scalia has noted (in Employment Division v Smith):

    “Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

    The government has a reasonable interest in defining what constitutes minimal health care coverage – and it is clear that reproductive care is an element of such coverage. In the same way that your objection to war does not relieve you of the obligation to pay taxes that support it, and in the same way that your objection to these medical procedures does not relieve you of your obligation to pay Medicare taxes (which also provides this coverage), religious freedom does not mean that you can place your personal religious beliefs above the laws of the land.

  • johnsonlr11

    FYIColumbia: Thank you for a reasoned and documented letter.