Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Religious Freedom in the Next Phase of Health Care Reform

Clarke E. Cochran


The Affordable Care Act (ACA) generated serious religious liberty concerns, most contentiously (and perhaps most unexpectedly) over contraception. Because so many health care providers are faith-based, the ACA’s implementation regulations should respect their religious freedom and relative sovereignty. That Catholic entities would be concerned about contraception and sterilization is not surprising. Yet, in addition and most unexpectedly, for-profit businesses also challenged the ACA on religious liberty grounds.


The June 2012 Supreme Court decision upholding the constitutionality of the ACA left important questions open. Various organizations and individuals filed approximately 40 law suits challenging the law’s contraceptive mandate (HHS mandate). The HHS mandate threatens violation of significant commitments of the Center for Public Justice, since it requires religious institutions, such as Catholic colleges and health care systems, to include contraceptives in their employee insurance in violation of their religious principles.


Less clear, in terms of the Center’s principles, is the attempt by religiously-motivated owners of secular businesses to argue that their businesses should also be exempt from the HHS mandate. Their position is more difficult to defend. Regulatory line-drawing based on corporate conscience would be far more troubling and burdensome than line-drawing based on well-established institutional religious teachings.


Relying on advice from an expert panel of the Institute of Medicine, the federal Department of Health and Human Services (HHS) classified all Food and Drug Administration approved contraceptives as “preventive healthcare.” This decision means that birth control prescriptions and devices, including the “morning after pill” or PlanB, must be included in most employer health plans without co-pays or deductibles. This HHS mandate potentially affects three different kinds of employers and the health benefits they furnish to their employees: churches, faith-based or church-related non-profit organizations (such as Catholic hospitals or Baptist children’s homes) and secular for-profit businesses.


Churches with religiously based objections to the HHS mandate, such as Catholic dioceses or parishes, have an automatic opt-out under the Obama administration regulations. The exemption, however, defined churches and church-related organizations so narrowly as to include only those that engage primarily in teaching the faith and in worship and those that primarily employ and serve co-religionists. Although the First Amendment likely requires such an exemption, the Center for Public Justice has always challenged such a narrow definition of religion.


Thousands of non-profits are deeply embedded in a faith tradition. However, they are not eligible for the exemptions because they serve any and all persons in need and don’t exclusively hire co-religionists for their ministries. The Obama administration delayed implementation of the HHS mandate for these organizations until August 2013 in order to try to craft an acceptable regulatory compromise. Some of these organizations filed suit, however, arguing that the very distinction between churches and faith-based ministries at the heart of the regulation violates the First Amendment’s “Free Exercise” clause. These organizations will be required either to violate their consciences by furnishing what they regard as immoral benefits or they will have to cease providing health insurance, which would impose a substantial burden on their employees.


The administration counters, also on First Amendment grounds, that most of the employees of these organizations are not co-religionists. Thus, the employees’ own First Amendment rights are violated when they are denied health benefits based on religious teachings they do not hold. In addition, the HHS mandate’s burden on religion is slight and indirect, because the religious employers are simply going along with contraceptive decisions made independently by their employees. Indeed, many such organizations already furnish a range of, if not all, these benefits based on coverage already mandated by laws in nearly half of the states.


The arguments on both sides possess merit, but the dangerous precedent of classifying faith-based non-profits as “really not religious” outweighs the interest of the government in expanding access to contraception among employees of religious organizations.


The opposite conclusion may be required for the third category of cases. Here the founders of family-owned private businesses, most notably the Green family, evangelical Protestant owners of Hobby Lobby, and the Catholic founder of Dominos Pizza, Tom Monaghan, have argued that the Religious Freedom Restoration Act (RFRA) protects them from having to comply with the HHS mandate. Although it would be legally difficult for private owners of businesses to claim clear First Amendment-based exemption from generally applicable and neutral laws, when Congress passed RFRA it required the government to have a “compelling interest” and to use the “least restrictive means” to achieve that interest before burdening the religiously based consciences of individuals subject to a law. (Faith-based organizations have also made this argument in addition to the First Amendment argument described above.) Green, Monaghan and others claim RFRA protects them from implementing the mandate because the administration has not used the least restrictive means possible, nor has it shown that providing contraception at no cost is a compelling interest, especially since the fine for non-compliance is very onerous ($100 per employee per day; $1.3 million per day in the case of Hobby Lobby).


My own judgment is that the administration’s case is stronger. Employees of these companies have not signed on to work for explicitly religious employers (as have congregation workers or employees in Catholic hospitals). These employers should not have the absolute right to dictate the health care services to which their employees have access. The health plans are offered by the corporations involved, not by the individual owners. Indeed, in the case of Hobby Lobby at least, the company had offered the mandated contraceptive services before it learned of the mandate! In effect it now claims that it mistakenly violated its own conscience and wants to rectify that mistake rather than comply with the HHS mandate!


-- Clarke E. Cochran is Vice President of Mission Integration at Covenant Health in Lubbock, Texas

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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”