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January 01, 2013

Much Ado About Nothing? Religious Freedom and the Contraceptive-Coverage Benefit

by Aram A. Schvey

August 1, 2012: A date that will live in infamy. Or so some religious conservatives contend. Matt Smith, president of the Catholic Advocate, solemnly declared that “August first will be remembered as the day our most cherished liberty was thrown in a government dumpster and hauled away.” L. Brent Bozell III, president of the conservative Media Research Center, inveighed that “the beginning of the end of freedom as America has known it and loved it” was nigh. And, unsatisfied with even that level of rhetoric, Rep. Mike Kelly (R-PA) went so far as to compare August 1, 2012, to America’s darkest hours:

[Y]ou can think of the times America was attacked. One is December 7, that’s Pearl Harbor Day. The other is September 11, and that’s the day the terrorists attacked. I want you to remember August 1, 2012, the attack on our religious freedom. That is a day that will live in infamy, along with those other dates.

What event occurred on August 1, 2012, to give rise to such fire-and-brimstone rhetoric? A terrorist attack? A dastardly sneak attack by an enemy nation? A tyrannical military coup d’état?

Hardly. Instead, August 1, 2012, is the day that the 99 percent of American women who have used contraception (including 98 percent of Catholic women) could kiss their copays goodbye and save hundreds of dollars a year on essential reproductive health care. On that date, the contraceptive-coverage benefit of the Affordable Care Act (also known as “Obamacare”) went into effect. Under the new policy, most employers’ health-insurance plans (other than those for houses of worship) must begin covering FDA-approved contraception (including sterilization and emergency contraception) and associated counseling without cost-sharing—eliminating contraceptive copays.

What to most Americans was a tremendous health care benefit—saving them hundreds of dollars per year in out-of-pocket costs and putting contraception, and, in particular, expensive long-term contraceptive methods, within reach—is to some an affront to and violation of their religious liberty. Critics of the policy who see contraception as sinful are outraged that employees might access contraception through a company-subsidized health-insurance plan despite the company owner’s sincerely held belief that contraception is sinful.

This notion—that the contraceptive-coverage benefit runs roughshod over employers’ religious liberty—is a claim that has been repeated often and with great fervor. But the dispute cannot be fairly reduced to a conflict between those who support and those who oppose religious liberty. Indeed, all sides agree that religious liberty is a bedrock American value and worthy of protection. What is at issue in the debate is whose religious liberty is at stake: the employers who object to the fact that some employees may access contraception through health-insurance plans, or employees, who risk losing essential health-insurance coverage based on their employer’s religious beliefs. Ultimately, this article concludes, religious liberty belongs equally to all Americans. But it is not a sword to be used by those at the top of the employment ladder to hack away at those at lower rungs; rather, it is a shield that protects all individuals’ religious beliefs equally.


The contraceptive-coverage policy was recommended as part of a comprehensive set of preventive services for women through the Women’s Health Amendment to the Affordable Care Act by a blue-ribbon panel of acclaimed medical experts convened by the Institute of Medicine (other recommendations included improved cancer and sexually transmitted infection (STI) screenings, broadly available lactation counseling, and no-copay annual well-woman preventive-care visits). The purpose of the contraceptive-coverage policy is to promote the health of women and children nationwide by addressing America’s sky-high unintended-pregnancy rate: Half of all U.S. pregnancies are unintended, and those unintended pregnancies pose real health risks for women, and, where the pregnancy is taken to term, for newborns. By making contraception—and, in particular, more expensive, but more effective, long-acting contraception (such as intrauterine devices (IUDs) and implants)—more affordable, the policy aims to cut the unintended pregnancy rate, promote health, and save money in the process (because studies demonstrate that a dollar spent on contraception can save more than four dollars in medical costs).

In rolling out the no-copay-contraception policy, the administration recognized that churches and other religious employers might have objections to carrying health insurance that in turn covered contraception. Consequently, the Department of Health and Human Services proposed carving out a special exemption to the policy for houses of worship, as a means of respecting “the unique relationship between a house of worship and its employees in ministerial positions,” even though such an exemption was not required as a matter of law. The exemption applies to a nonprofit employer if its purpose is the inculcation of religious values and if it primarily employs and serves those sharing its religious tenets, such as a church or mosque. The exemption does not, however, extend to institutions claiming a religious affiliation that hire and serve nonadherents, such as hospitals and universities; nor does it apply to for-profit companies. The reason is simple: Allowing any corporation or institution to claim exemptions from the law would, in effect, allow the exceptions to swallow the rule, turning the law into Swiss cheese and blunting its purpose of promoting the health of women and infants. It would also have the effect of imposing the employer’s religious beliefs on nonbelievers, thus making employees’ benefits subject to their employer’s religious views.

The exemption did little to quiet critics, and the outcry from religious conservatives and others was quick and vociferous. Despite the fact that most states already mandate coverage for contraceptive drugs and devices, and that many of those states include no exemption whatsoever, the U.S. Conference of Catholic Bishops decried the contraception-coverage benefit as “unprecedented” and numerous institutions claiming a religious affiliation, for-profit companies, and a group of state attorneys general have filed lawsuits to try to halt the implementation of the law. In response, the administration proposed an additional accommodation whereby the cost of the contraception would be explicitly borne by the health-insurance companies, rather than the employer issuing the insurance policy. But neither this second accommodation, nor a one-year safe-harbor provision for groups with religious objections, has quieted the furor.

A number of the suits have been dismissed as premature in light of the safe-harbor provision, but in July 2012 a federal district judge in Colorado granted a preliminary injunction preventing the policy from being enforced against Hercules Industries, a for-profit heating, ventilation, and air-conditioning company, whose owners object to contraception. In late September 2012, however, a federal district judge in Missouri dismissed on the merits a challenge to the contraceptive-coverage benefit brought by a for-profit mining company whose mission includes “mak[ing] our labor a pleasing offering to the Lord.”

The current debate surrounding the contraceptive-coverage benefit continues, both in Congress and in the courts. Assuming the Affordable Care Act is not repealed, it may take a Supreme Court decision, in light of the possibility of the circuit courts of appeals splitting on the issue (a likely scenario, given that lawsuits have been filed in numerous circuits). While the claims made in each case differ, the major claims are based on the First Amendment and on the Religious Freedom Restoration Act (RFRA), a 1993 federal statute that applies a strict-scrutiny test to federal actions that substantially burden a person’s exercise of religion.

Legal Claims

At first blush, one might assume that the First Amendment claims being made by those challenging the contraceptive-coverage benefit are strong. But, in fact, the Supreme Court has roundly rejected the proposition that an otherwise neutral and generally applicable law is unconstitutional simply because it happens to interfere with someone’s religious beliefs. Perhaps even more surprising is the fact that this understanding of the First Amendment’s intended contours was set forth by the very Supreme Court justice who is commonly thought of as conservative and therefore assumed to be sympathetic to religious-liberty claims—Justice Antonin Scalia.

In Employment Division v. Smith, 494 U.S. 872 (1990), the Court confronted a challenge to a statute that denied unemployment benefits to drug users, including Native Americans who consumed sacramental peyote. Justice Scalia, writing for the Court, rejected the claim that the drug-use prohibition violated the Free Exercise Clause as applied to Native Americans who consumed peyote: “The government’s ability . . . to carry out . . . aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development”; otherwise, every religious objector would “become a law unto himself,” a result that Justice Scalia found to be unsupported by both the Constitution and common sense. If a law is neutral and generally applicable, and does not directly target religious activity qua religious activity, it is constitutional. Whether or not an exemption might be desirable, Justice Scalia emphasized, “is not to say that it is constitutionally required.”

There is no question that the contraception-coverage benefit is both neutral and generally applicable, and thus accords with the First Amendment. Far from deliberately targeting religious activity, the policy focuses on insurance coverage. And the policy, of course, applies to employers irrespective of their religiosity, or the nature of their religious views. There is simply no support for the claim by the U.S. Conference of Catholic Bishops that the law “targets Catholicism for special disfavor.” Indeed, the policy was based on the recommendation of a blue-ribbon panel of medical experts, which in turn was based on substantial scholarship and research.

The stronger claim advanced by opponents of the contraceptive-coverage benefit is that the policy violates the RFRA, a statute designed to overturn legislatively Employment Division and impose a strict-scrutiny test on laws that burden religious exercise. Under RFRA, any federal policy that substantially burdens a person’s religious exercise must be justified by a compelling interest, and use the least restrictive means of achieving that interest. Opponents of the contraceptive-coverage benefit argue that a company owner or other employer’s religious exercise is substantially burdened by the fact that his or her employees may seek, and access, contraception that the owner/employer finds sinful.

There are numerous problems with this claim—most centrally, the fact that it utterly ignores the religious-liberty interest of the employees, whose health-insurance benefits would be restricted based on their employer’s religious beliefs. Indeed, in the Hercules Industries case mentioned above, when the judge sought to balance the harms in deciding whether to grant a preliminary injunction, he weighed the employer’s religious-liberty interest against the government’s interest in enforcing laws. What is shockingly absent is any consideration of the impact of the decision on the company’s 265 employees and their dependents, who have the most to lose in any decision.

This factor—the impact on third parties—is what distinguishes the religious-liberty claims being made here from those made in previous instances where the Supreme Court has permitted a derogation from an otherwise applicable law. For example, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Supreme Court permitted an exemption to school-attendance laws for Amish children. But, in so doing, the Court emphasized that “there is no intimation” that permitting the children to opt out of public schooling “is in any way deleterious to their health.”

But with respect to the contraceptive-coverage benefit, there is an obvious impact on employees’ well-being—an opt-out for employers would directly harm employees’ health. And the Supreme Court has emphasized that one person’s sphere of religious liberty only extends to the boundary of another person’s sphere of religious liberty. The common thread in the Court’s exemptions-related cases is that the religious exercise protected in each instance “did not, or would not, impose substantial burdens on non-beneficiaries while allowing others to act according to their religious beliefs . . . nor [would they] impose monetary costs on [those] who opposed . . . the religious instruction.”

In contrast, exempting employers from the contraceptive-coverage benefit would directly impose both a health and a monetary burden on employees. This differentiates the sought exemption from other religious exemptions—for example, allowing Sikh policemen to have beards or allowing a Saturday-Sabbath observer to collect unemployment benefits if the only jobs she can find require Saturday labor.

In addition, it is wholly unclear whether RFRA even applies to corporations and companies, rather than actual flesh-and-blood human beings, or, as the court in the Hercules Industries case posited, “can a corporation exercise religion?” To answer in the affirmative would certainly open the floodgates to substantial mischief, potentially allowing corporations to flout discrimination laws and other worker protections, zoning policies, and safety regulations by claiming a religious posture. And even if RFRA protections were extended to companies and corporations, it is a highly dubious proposition that purchasing insurance coverage constitutes “religious exercise.”

To the extent that a corporate employer can invoke RFRA, the burden on religious exercise is minimal. In the cases where the Supreme Court has found a burden on religious exercise, an individual was prohibited by law from actually exercising his or her religion—keeping the Saturday Sabbath, for example, or using prescribed sacramental substances. In contrast, the employers in the various lawsuits are not being prevented from keeping the Sabbath, participating in communion, or providing religious schooling for their children. And they are certainly not being forced to use contraception or encourage its use; indeed, they remain free to speak out against it. Instead, as the federal district judge noted in the case dismissing an employer’s lawsuit, the supposed burden complained of is that an employer will contribute to a health care plan that might, after a series of independent decisions by employees and medical professionals, lead some employees to access contraception that is in some way subsidized by the employer. The link between the employer’s subsidization of insurance coverage and the ultimate receipt of contraceptives by an individual employee is so remote as to be meaningless. Indeed, it is difficult to distinguish an employer’s supposed interest in how employees use their health insurance from an employer’s interest in how employees use their salaries (which are, of course, paid by the employer).

Finally, the contraceptive-coverage benefit is consonant with RFRA because it advances a compelling governmental interest and uses the least restrictive means to achieve it. As noted, the policy furthers a compelling interest in women’s health and newborn health. It furthers a compelling interest in combating sex-based inequality—in December 2000, the Equal Employment Opportunity Commission held that Title VII of the Civil Rights Act bars employer-sponsored health-insurance plans that provide prescription-drug coverage but fail to cover contraceptives. It also helps remedy the insurance “penalty” women pay by virtue of being female: Senator Barbara Mikulski, the architect of the legislation underlying the contraceptive-coverage benefit, noted that she hoped that the Women’s Health Amendment would remedy the sex discrimination women face when purchasing insurance. And, finally, the policy promotes a compelling government interest in women’s autonomy. As a society, we recognize that access to affordable contraception is a cornerstone of women’s independence and equality. Justice Sandra Day O’Connor, the first female Supreme Court justice, said it best: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

These are powerful and compelling governmental interests. Where such compelling interests are present, the Supreme Court has consistently rejected religious opt-outs. It bears remembering that groups have often sought exemptions from broadly applicable laws based on religious beliefs. Religious groups have, over time, sought to be exempt from laws banning polygamy, from laws banning child labor, from laws banning racial discrimination, and from laws requiring the payment of taxes. In all of these cases, and in many more, the courts roundly rejected such claims. And with respect to the contraceptive-coverage policy, the highest courts of California and New York confronted challenges to their state’s contraceptive-coverage laws, in both cases rejecting religious-liberty challenges to the same narrow religious exemption currently at issue in the federal policy. The California Supreme Court’s decision is particularly instructive, holding, “We are unaware of any decision in which . . . the United States Supreme Court . . . has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”


Religious liberty is a core American value, and the delicate balance between the First Amendment’s Free Exercise and Establishment Clauses is a uniquely American contribution to global jurisprudence. But in a nation blessed with almost endless religious diversity—with those subscribing to all manner of faiths and none, and innumerable interpretations and manifestations of those beliefs—preferencing one person’s religious liberty, or one group of people’s religious liberty, without regard to others inevitably results in a diminution of rights.

As a nation, we have, and will continue, to struggle to balance laws and policies protecting the individual and those protecting the community. Where religious liberty is used as a shield, the courts have rightly upheld exemptions to protect religious worship and customs from government intrusion. But the courts have rightly rejected—and should continue to reject—claims where religious liberty is used as a sword to subordinate the rights of others. Indeed, the nation was founded on the principle that all Americans, whether corner-office prince or mail-room pauper, have an equal claim to religious liberty.


Aram A. Schvey serves as policy counsel at the Center for Reproductive Rights, a global human rights organization dedicated to promoting reproductive rights in the United States and around the world. He previously served as litigation counsel at Americans United for Separation of Church and State and has served as a fellow at the Georgetown University Law Center and Fordham Law School. He also serves on the editorial board for Human Rights.