Religious Liberty and Access to Reproductive Health Care

Religious liberty should not be on a crash course with access to reproductive health care, including abortion. People of all faiths and none need and use reproductive health-care services. Moreover, for many people, religious belief drives support for equitable access to full-spectrum care, from contraception to maternal health to abortion. And some health-care providers feel compelled to provide abortion care in part because of their religious beliefs.

The problem is when religious liberty is exploited to deny access to others. People are regularly refused reproductive health care because they are patients of religious hospitals that decline to provide sterilization, infertility treatments, and abortion or because they work for religious employers that will not cover abortion or contraceptives in their insurance plans. 

Against this backdrop, recent attempts to expand religious liberty to further curtail reproductive rights seem even more imbalanced. One notable example was the 2019 Health and Human Services (HHS) rule, finalized under President Trump, that allowed virtually anyone who asserted an objection based on religious or moral beliefs in a health care employment setting to claim that they faced discrimination for refusing to assist with services including abortion—defining “assist” almost without limits. It also vastly expanded the individuals and entities who could claim a religious or moral exemption and the types of actions considered discrimination, heavily penalizing employers found liable for actions that might include simply requiring a receptionist to schedule appointments.

Several federal district courts blocked the rule in response to challenges filed across the country on the grounds that it was enacted using flawed procedures and was unlawful. President Biden’s administration has declined to enforce it.

Another HHS rule, that the Trump administration issued in 2017, exempted almost any employer who claimed a religious or moral objection to birth control from covering it in their employee health insurance plan, forcing employees to pay out of pocket or go without. The U.S. Supreme Court ultimately upheld the rule against a challenge claiming that it violated the Affordable Care Act (ACA) and rule-making procedures, allowing employers to end coverage for an inestimable number of people.

Religious Liberty Cannot Justify Harm to Reproductive Health and Rights

Prior to these recent trends, religious liberty jurisprudence generally included an “anti-harm” principle. In other words, religious liberty claims could prevail only when they would not inflict harm on a third party. In earlier litigation over the ACA’s contraception coverage requirement culminating in Hobby Lobby v. Burwell (2014), the Supreme Court, even while extending an accommodation to religious employers with objections to birth control that gave employees coverage outside of their workplace plan, stressed that this workaround meant that no employees would be left without coverage. Courts considering whether pharmacists could be required to dispense contraception similarly considered whether and how religious exemptions and accommodations could harm people with pressing, real-world needs and held that the gravity of these harms adequately justified such a requirement. The anti-harm principle served to balance religious liberty against access to reproductive health care.

Today, religious plaintiffs urge courts to credit any claim that a law or policy conflicts with beliefs about abortion or contraception, even in a way that seems attenuated, and ignore the other side of the equation. Religious health-care workers seeking an exemption from New York state’s COVID-19 vaccination requirement asserted that because the vaccines were developed using (although did not themselves include) cell lines artificially derived decades ago from fetal stem cells, they violated a religious belief that benefiting from abortion is wrong. The challengers argued that the policy discriminates against religion, and because religious liberty is an individual right and “supreme interest,” courts cannot consider the collective harm to public health from large numbers of unvaccinated religious objectors. The Supreme Court declined to stay the vaccine requirement after lower courts rejected the challengers’ arguments, with Justices Thomas, Alito, and Gorsuch in dissent.

It remains to be seen whether the Supreme Court will go farther in ruling that the Constitution protects religious liberty over and above harms to public health, no matter how attenuated a connection to abortion or contraception might seem. 

RFRA and Barriers to Reproductive Health Care

The Religious Freedom Restoration Act (RFRA), passed in 1993, was intended to restore protections when laws interfered with the exercise of religion, especially for religious minority communities. However, in the years since RFRA’s enactment, RFRA has been misused to justify discrimination against women and LGBTQ people and deny access to reproductive health care.

In Hobby Lobby, the Supreme Court held for the first time that under RFRA, closely held for-profit companies can refuse to comply with the ACA’s contraceptive coverage requirement, permitting these companies to impose their religious beliefs on their employees. In her dissent, Justice Ruth Bader Ginsburg questioned whether the precedent set in this decision could actually be confined to the issue of contraceptive coverage, writing “I fear the Court has ventured into a minefield by its immoderate reading of RFRA.” In the years following, that is exactly what unfolded as RFRA morphed into a license to discriminate.

Private entities have increasingly relied on RFRA to seek exemptions from federal laws that protect or extend access for people seeking reproductive health care. For example, Franciscan Alliance v. Burwell (2016) involved a challenge to an Obama administration regulation implementing Section 1557 of the ACA—the first federal civil rights law to prohibit discrimination on the basis of sex in health care. A group of states and hospitals relied on RFRA in part to assert that the regulations’ protections against discrimination based on gender identity or termination of pregnancy violated their religious liberty. A federal district court agreed, permanently enjoining these provisions of the 2016 regulation.

Another key example is DeOtte v. Azar (2019), a class action lawsuit brought by a for-profit business and group of individuals arguing that RFRA entitles any objecting employer in the United States to a full opt out from the ACA’s contraceptive coverage requirement and Obama-era accommodation process. A federal district court judge agreed and issued a sweeping injunction that prohibited enforcement of the ACA’s contraceptive coverage requirement, including the accommodation, against “[e]very current and future employer in the United States that objects, based on its sincerely held religious beliefs” to providing contraceptive coverage, as well as to “all current and future individuals in the United States” who demand plans in the health insurance marketplace that do not cover birth control.

Apart from abuse of RFRA claims by plaintiffs seeking to deny reproductive health care to others, the Trump administration used RFRA as a justification to promulgate harmful rules that undermined nondiscrimination protections for women and LGBTQ individuals and improperly prioritized ideology over reproductive health and rights. In 2021, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs finalized a rule that greatly expanded the scope of the religious exemption for federal contractors and would have allowed federal contractors to claim a right to fire an employee for their decisions about whether and how to start a family, including becoming pregnant outside of marriage or becoming pregnant while in an LGBTQ relationship, using in vitro fertilization to start a family, or having an abortion. The rule also directed courts to analyze RFRA claims by contractors asserting a religious exemption without appropriately weighing the interests of third parties. Due to pending litigation, the rule was not implemented, and the Biden-Harris administration has proposed to rescind it. The Trump administration also relied on RFRA to support its 2017 Rules that created a broad exemption and enabled virtually any employer or university to deny contraceptive coverage, as discussed above.

The Do No Harm Act would address this RFRA “minefield” by returning RFRA to its original intent and clarifying that it may not be used to harm others. The bill amends RFRA to state that it does not apply to laws that protect against discrimination and laws that “provide for access to, information about, referrals for, provision of, or coverage for, any health-care item or service.” The Do No Harm Act is a federal legislative solution to the continued misuse of religious liberty to sanction discrimination against women and LGBTQ individuals and deny access to reproductive health care. As the Supreme Court shows increasing deference to free exercise claims, with dwindling focus on how they may harm other groups, legislative responses are even more critical.