The Religious Freedom and Contraception Debate, a Legal Perspective

March 19, 2012

Over the past couple of weeks, the news has been aflutter with stories about health insurance coverage and contraception; namely, whether providers of health insurance— including religiously affiliated institutions— should be required to ensure women’s access to contraception even if its usage contradicts the institution’s stated beliefs. Much of these conversations have touched on important constitutional principles, such as the First Amendment’s guarantee to allow individuals to freely exercise one’s chosen religious practices. Unfortunately, these conversations also tend to be high on rhetoric, but light on the law. Considering the importance of this national discussion, I wanted to explain the constitutional law involved, which has largely been absent in our national conversation, and discuss how not only the Free Exercise clause implicated, but also the Establishment clause is.

This all started with the Patient Protection and Affordable Care Act. The Act requires that employers and other institutions provide contraceptive coverage as part of their health insurance plans. In an attempt to respect religious convictions, churches and other houses of worship were excluded from providing coverage; however Catholic universities and charities were not. Regulations promulgated by the Department of Health and Human Services noted that providing for contraceptive coverage would improve the social and economic status of women by allowing women to achieve equal status as members of the work force.

Yet the Catholic Church’s stance opposes some forms of contraception and some bishops within the Church argued that without a broader exemption from coverage, the Church, through its universities and its other institutions, would be forced to provide coverage against the Church’s religious convictions. After a political fight over the virtues of both side’s arguments, Senator Roy Blunt (R-MO) proposed an amendment, Senate Amendment 1520, to allow health plans to exclude contraception coverage, so long as the reason for the exclusion was based on the religious beliefs or moral convictions of the employer providing the plan. Senator Blunt’s Amendment attempts to accommodate the religious beliefs of adherents, but fails to take into account the possibility of unconstitutionally establishing religion. As the Supreme Court has noted, navigating the waters between the Free Exercise and Establishment clauses can be like navigating between the dual rocks of Charybdis and Scylla; the closer one gets to satisfying one of the clauses, can lead to violating the other clause.

When the government attempts to provide religious exceptions to a statute, the government must take care to ensure that the exception does not amount to an impermissible establishment of religion. It has long been held by the Supreme Court that the government can provide for exceptions from statutorily imposed burdens on religious practice. Walz v. Tax Comm’n; Corp. of Presiding Bishop v. Amos. For example, Title VII generally disallows employers to discriminate based on religion. Later amendments to Title VII lifted this burden for churches and houses of worship to allow discrimination based on religion. This naturally makes sense; allowing a Catholic church to deny employment to a Protestant minister is necessary to maintain the Catholic Church’s ability to communicate its own religious views. This principle, wherein government exceptions are made to accommodate religious practice, is generally constitutional so long as the exception does not unconstitutionally foster religion. Corp. of Presiding Bishop v. Amos; Walz v. Tax Comm’n; Hobbie v. Unemployment Appeals Comm’n of Fla.

Thankfully, the Court has explained that a religious exception unconstitutionally fosters religion in violation of the establishment clause when the exception overly favors one religious practice or its adherents, or favors adherents of religion as such. Tex. Monthly, Inc. v. Bullock; Estate of Thornton v. Caldor. In making such broad pronouncements, the Constitution requires some nuance. For example, government is perfectly within its right to provide for measures that primarily advance secular goals that incidentally benefits religion. Additionally, the fact that religion is favored is not enough to be considered a violation of the establishment clause.

Applying this law to the contraception debate, it seems to me that further accommodating the Catholic Church’s position on the Affordable Care Act mandates would violate the Establishment clause. During the debate, Catholic Bishops argued in favor of allowing those with religious or moral objections to exclude contraceptive coverage from their health plans- which would impact employees of the Church’s religious institutions across the country. This would require employees of the Catholic Church or one of its institutions, to incur the costs of the Catholic Church’s religious views by having to pay for certain types of medical care out of pocket. This alone could be considered a violation of the Establishment clause because it would force nonadherent employees to suffer the religious views of the employer with no recourse. Additionally, the Church’s position would also require the employee to subsidize the Church’s religious belief. Effectively the Church would not have to cover contraceptive coverage because the church can shift the costs of coverage to the employee. This cost shifting results in economic gains to the Church to the detriment of the employees. That economic benefit supports the church, resulting in government subsidized religious practice and a violation of the Establishment clause.

Even if the Church’s general arguments do not violate the Establishment clause, Senator Blunt’s amendment would have clearly violated the Constitution. As Caldor made clear, the government cannot, through legislation, require that religious concerns automatically control over secular interests in the workplace. The Blunt amendment goes further than even the Catholic Bishops in that any moral or religious objection would allow the employer to lawfully exclude coverage under the Affordable Care Act. This is an extremely broad exception. Not only could an employer object to contraception coverage, but any type of medical support. Furthermore, the grounds for an exception are expanded beyond religious views to moral grounds. This seems precisely like the kind of scheme rejected in Caldor. There, the Court found that a scheme requiring employers to allow an employee to leave work on the employee’s declared Sabbath day, no matter the belief or day, forced the employer and nonadherent employees to carry the burdens of the religious employee’s belief. Senator Blunt’s amendment sets up the same kind of scheme except for employers by requiring employees to take on any employers religious or moral beliefs. Senator Blunt’s amendment would have been a clear violation of the Establishment clause.

Given the above discussion, I hope I have highlighted the complex nature of the Free Exercise clause, through the contraception debate, and how it relates to the Establishment clause. These principles are important, and we cannot favor the Free Exercise clause while abandoning our support of the Establishment clause. Although there is play in the joints between the two clauses, the government cannot accommodate religious belief by placing undue burdens on nonbeneficiaries. Cutter v. Wilkinson.