New guidelines applied August 1 by the Department of Health and Human Services (HHS) to the Affordable Care Act , requiring that employers include coverage of women’s preventive care, including birth control have drawn fierce opposition from the religious.
The new guidelines require all new private insurance plans to cover preventive services—including, for example, breast exams and pap smears, maternity care, HPV testing, gestational diabetes screening and breastfeeding support—sans co-payment, co-insurance or a deductible and without cost-sharing. The guidelines, which go into effect as of August 1, 2012, also require coverage without a co-pay of FDA-approved contraception and contraceptive counseling. And there’s the rub. The Guttmacher Institute recently reported that 98 percent of sexually active Catholic women have used modern forms of birth control banned by the Catholic Church hierarchy, yet some Catholic organizations are crying foul over the birth control mandate.
Based on language from conscience clauses found in 28 states, non-profit religious institutions that exist for religious purposes, and primarily employ and serve those who share their religious values can opt out of offering contraceptive coverage in their group health plans. The HHS opened the interim policy for public comment for 60 days since the announcement, which closes on Friday, September 30.
This option and its interim religious exemption is a point of contention for some religious groups. Last month, the United States Conference of Catholic Bishops  (USCCB) sent HHS a 35-page letter  detailing how and why both the birth control mandate and conscience clause are inadequate and could be construed as unconstitutional. Around the same time, a group of Catholic scholars and leaders also sent a letter to HHS  criticizing the “narrow” language of this religious employer definition. The overall message: expand the criteria to include those inherently religious institutions that serve and employ people of different faiths, like Catholic hospitals, charities and colleges who are not exempted from providing contraceptive coverage.
“Catholic hospitals provide invaluable care for the poor and underserved, often filling in gaps in other kinds of services and coverage. It would be a shame if the requirement to provide insurance that covers birth control got in the way of continuing this mission,” says Lisa Sowle Cahill, professor at Massachusetts’ Jesuit, Catholic university, Boston College, and one of the signers of the letter. “In the case of Catholic hospitals, it is specifically a part of their religious mission to serve all the poor and vulnerable, regardless of religion. I hope that the broader precedent definition of religious institution can be adopted to avoid counterproductive conflict and allow continuation of this mission.”
Proponents of comprehensive women’s health don’t agree. “Because a university was founded by a Catholic entity or that the board of this university is constituted of people of religion, but yet serves the public and employs the public, I find that hard to say that’s a religious institution,” Judy Waxman, Vice President of Health & Reproductive Rights the National Women’s Law Center told RH Reality Check. “To me, if I work for Georgetown University, [does] that mean that the Catholic teachings apply to my personal life? I don’t think that’s what I’m signing up for.”
“Legally, we think the [exemption] should be gone,” she adds. And if such an expansion was implemented in the final rule, American Civil Liberties Union’s Washington Legislative Office Policy Counsel Sarah Lipton-Lubet believes it would have damaging effects on women’s health, women’s equality, and religious liberty. “Women need access to contraception so that they can choose for themselves whether to use it, how to plan their families, and how to plan their lives,” she says.
She also considers the definition already too broad for what HHS hopes to achieve—that is, respecting the “unique relationship” between a house of worship and its clergy. But as it stands, notes Lipton-Lubet, it would also block contraceptive coverage for lay employees like administrative staff, custodians and organists.
“Under no circumstances should the exception be expanded. Contraception is a vital part of women’s preventive care,” she adds. “Women need access to contraception to prevent unintended pregnancies, plan the size of their families, plan their lives, and protect their health.”
Religious Exemption and the Constitution
There is, of course, a larger debate surrounding this disputed exemption–the constitutional implication. While the USCCB and other Catholic scholars claim the “too-narrow” religious employer definition violates the First Amendment’s free exercise clause in regards to the excluded religious institutions, insurers, and individuals, the ACLU, Women’s Law Center, Women’s Law Project and other women’s rights groups maintain that it infringes on the First Amendment rights of those women who would benefit from the easier access to contraception.
“Expanding the exception would allow employers to impose their faith on employees, regardless of those individuals’ own beliefs. That’s just wrong on so many levels,” says Lipton-Lubet. “There is no constitutional problem with requiring coverage of contraception. Allowing those women who need access to contraception to have it is not an infringement on anyone’s religious liberty…People of many faiths work at religiously affiliated hospitals and social service agencies; they know what’s best for themselves and their families – whether and when to use contraception is a personal choice.”
Courts in two of the 20 states that offer exemptions to contraceptive coverage for insurers and employers, New York and California, have found conscience clauses like the HHS interim rule affecting only houses of worship to be constitutional. In 2000, Catholic Charities of Sacramento v. Superior Court of Sacramento County , the Catholic Charities of Sacramento filed a lawsuit against the state of California, challenging the Women’s Contraception Equity Act . The Act requires that California employers include prescription contraceptives in their health care coverage and prescription plans. Catholic Charities did not fall within the provisions of the act’s religious employer exemption, and argued that the Act therefore violated their First Amendment rights. The complaint was rejected by a lower court, a decision subsequently affirmed in 2004 by the California Supreme Court, which upheld WCEA’s constitutionality, and stated that not only does Catholic Charities of Sacramento not qualify for the religious employer exemption, but that the act serves a “compelling state interest of eliminating gender discrimination.”
Like California, New York’s Catholic Charities of Albany, et al v. Gregory V. Serio  saw ten Catholic and Baptist organizations (including one Baptist church) challenging the state’s Women’s Health and Wellness Act , which mandated insurance coverage for contraceptives in addition to other women’s health services. According to the suit filed in 2002, the plaintiffs argued that the restrictive requirement infringed on their religious freedoms as enshrined by both the US Constitution and New York Constitution. In 2003, however, the New York Supreme Court dismissed the complaint, granting summary judgment in the defendant’s favor and upholding the act as constitutional. The groups then appealed, and in early 2006, a divided appellate division affirmed the original decision. Appealing once more, the New York Court of Appeals affirmed the decision once again later that year, preserving WHWA as constitutional as applied to the plaintiffs. The US Supreme Court decided not to consider the challenge in 2007.
Likewise, the US Supreme court has dismissed the opinion that the free exercise clause alone can exempt one from neutral, generally applicable laws. In 1982’s United States v. Lee , the US Supreme Court decided that an Amish employer was not constitutionally exempt from paying Social Security taxes on religious grounds because the tax system is a neutral, generally applicable regulatory law. Subsequently, in 1990’s Employment Division, Department of Human Resources of Oregon v. Smith , the Court ruled that unemployment benefits in Oregon could be denied to a fired employee who violated a state prohibition of peyote, despite its use in a religious ritual. At that time, Oregon law prohibited the “knowing or intentional possession” of drugs (peyote is classified as Schedule I, the class for the most dangerous and highly addictive controlled substances), which was applied to the general public, thus making the state’s criminal law neutral and generally applicable “regardless of the religious motivation of the prohibited conduct.” (This has since changed: Oregon now allows an affirmative defense for the use of peyote for religious purposes. Also, the 1996 federal stature, “Traditional Indian Religious Use of the Peyote Sacrament,” as well as many state laws, allow exemptions for Native Americans who use peyote in a “bonafide religious activity.”) To date, the Supreme Court has upheld a First Amendment exemption from generally applicable law only when it is in conjunction with other constitutional protection. In the 1971 case, Wisconsin v. Yoder , the court held that, to ensure parents’ freedom of religion under the Fourteenth Amendment, Amish children could not be required to attend school past the eighth grade.
As stated by HHS and reiterated in succeeding reports, these new contraceptive coverage mandate and, by extension, the religious protection clause are only relative to all new private group or individual insurance plans, thus according to Lipton-Lubet, satisfying the requisite of general applicability and neutrality.
But the First Amendment is a tricky beast. When broken down, there are two fundamental religion clauses in the often-cited amendment that, according to University of Pennsylvania Law School Professor Theodor Ruger, are “somewhat in conceptual tension”—the prohibition of a government-established religion and the protection of free religious exercise. Considering this two provisions, Ruger notes that exemptions for religious individuals from a “generally applicable regulatory statue, such as a health access law,” raises two possible constitutional concerns: “Does it unduly “establish” religion by carving out a free ride for religious individuals? Alternatively, if the exemption is too narrow, as some religious groups claim here, does it burden religious practice?’
“In my view, despite the existence of these background concerns in an argumentative sense, the HHS regulation is legally constitutional on both dimensions,” says Ruger, whose expertise lies in constitutional law, health law, and food and drug regulation. “Numerous federal laws exempt religious practice from general regulatory requirements, so no problem there. On the other hand, the mandate’s applicability to Catholic hospitals does not create a free exercise clause violation, since, in running a hospital, the Church is operating a secular function and subject to lots of general health laws.”
The HHS Guidelines and Discrimination
The points raised in the United States Conference of Catholic Bishops’ letter may be flawed at best. In its attempt to underscore the narrowness of the religious exemption, the group cites the Church Amendment  [to the Health Programs Extension Act of 1973], as evidence of long-standing federal conscience protections. However, it’s a vague correlation. After all, according to The Journal of Clinical Ethics 2010 legal briefing, Conscience Clause and Conscientious Refusal , the Church Amendment only protects federally-funded individuals or facilities from having to conduct abortions or sterilizations on religious grounds, as well as individual providers from employer discrimination regarding their “willingness” to perform such services. Plus, in early 2009, HHS regulations based on the Church Amendment, and the subsequent 1996 Coats and 2005 Weldon Amendments  (both of which prohibit discrimination against providers with moral objections to any training or health service) went into effect, augmenting this conscience protection to encompass almost any health service. And, more recently, the Affordable Care Act upholds that abortion coverage does not need to be included in “qualified health plans.” Despite the USCCB’s inaccurate claim that many hormonal contraceptives cause abortion—thus, delineating the overall contraception mandate is discriminatory and in violation of Weldon and the ACA—contraceptive coverage and the right to withhold such is not explicitly implicated.
But this idea of discrimination is also prevalent on side of reproductive rights. HHS simply does not have the lawful authority to implement such an amendment, says Waxman, citing Section 1557 of the Affordable Care Act, which prevents discrimination on the basis of age, sex, race, disability, and national origin “through exclusion from participation in or denial of benefits under any health program or activity.”
“We believe that, in addition to that fact there’s no authority to begin with, [Section] 1557 requires for them to take away this exemption because they are plucking out women’s contraception and putting an exemption just for that,” says Waxman. “We would say that is discrimination based on facts.”
“They can’t make it up out of these laws. Maybe if a different statue passed, but the agency can’t say, ‘We just decided we need to put this in.’ No. They have to follow what the law says…It’s not a legitimate exercise of their authority,” she adds.
The implication of sex discrimination related to denial of contraceptive coverage has been previously explored. In Sylvia A. Law’s detailed 1998 article, “Sex Discrimination and Insurance for Contraception ,” the eminent New York University Law School professor argues that the lack of contraceptive coverage in most private health plans covering prescription drugs and devices for men under their plans establishes discrimination on the basis of sex, thus violating Title VII of the 1964 Civil Rights Act , as amended by the Pregnancy Discrimination Act , which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. It’s a position the US Equal Employment Opportunity Commission  maintained in 2000 when it ruled in two charges challenging the contraception exclusion that employers providing insurance coverage for blood-pressure medication and impotency treatment but block coverage for prescription contraceptives is in breach of federal anti-discrimination law, rejecting arguments based on cost. In 2009, the EEOC also determined that Belmont Abbey College, a 1,500-student North Carolina-based Catholic seminary, violated those laws by not including contraception in its employee health insurance plan after investigating a complaint filed by eight faculty members (six men and two women) on the school’s removal of abortion, prescription contraception and elective sterilization procedures from its plan. This, however, is not successfully everywhere—in 2007, the Eight US Circuit Court of Appeals in St. Louis declared In Re Union Pacific Railroad Employment Practices Litigation  that “employer-based insurance plans’ blanket exclusive of coverage for contraceptives” does not constitute as sex discrimination since it considered contraceptives to be gender-neutral because it’s used by both sexes, and dismissed it’s connection to the PDA because contraception is used prior to pregnancy.
“When you look at the impact on women economically and having to pay out of pocket for prescription contraceptives, it can be a very large amount of money,” says Susan Frietsche, senior staff attorney for the Women’s Law Project, “so there are equality and gender discrimination considerations that come into play as well. I think it clearly overrides whatever hypothetical conscience concerns that corporations might have.”
Still, Cahill doesn’t consider discrimination or First Amendment violation in regards to the religious set’s proposed change to the interim exemption. “[Women] are not being ‘forced’ to adhere to religious values. They can work elsewhere or buy their own contraception,” she says. “If I work at Jewish Children and Family Services and they only serve kosher food in their cafeteria, is that a violation of my right not to be Jewish? I think that would be kind of ridiculous. I could eat elsewhere, work elsewhere or bring my own lunch.”
Waxman dismisses this notion. “In a multicultural society like ours, when the person is being hired to do something that really has nothing to do with the religion, like teach history or be a lab technician in a hospital, and this organization serves the entire public as well, it seems to me to be a stretch that they can delve that far into the personal lives of the employees,” she says.
And that’s where Ruger lands. According to the Philadelphia-based professor, general public policy regulations apply to religious institutions operating like a hospital or health insurance company. “This would be a harder issue if specific individuals were required to perform these services…that would be a bigger imposition on personal conscience,” he says. “But here the mandate goes to the institution as a whole, so that the institution can give the task of providing contraception to those nurses and doctors who do not have conscience objections.”
He also makes a point to note that, while churches “may discriminate against non-believers in their hiring practices,” religious organizations such as Catholic hospitals and universities are prohibited from doing so under the Civil Rights Act. So, although a Catholic diocese could require all priests and clerical staff to practice Catholicism, they cannot, for example, deny employment to Jewish, Hindu or other non-Catholic physicians. Yet this danger of verboten discrimination is very real for the USCCB, which, in its letter, threatened that these organizations will be forced to fire of non-Catholic employees and stop serving non-Catholics if they are required to provide the contraception option, just so they can fit the exemption.
So is there a possible solution that can narrow this gap? For Ruger, while “this clash can’t be bridged,” one way to intercede this mandate and exception is by placing the burden on the institution rather than a particular employee, and individual employees can withdraw from the option on moral grounds “provided that the institution always has alternative staff on call to serve the public.”
And Frietsche agrees. “For me, the question is not whether to honor the religious beliefs of affected individuals, but rather who’s conscience should win out when there’s a conflict,” she says. “When the conflict is between the ‘conscience’ of a corporation and the conscience of an individual, woman whose health and equality are on the line, the individual’s conscience should prevail.”