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

The Birth Control Mandate and Second-Class Religious Institutions

Stanley Carlson-Thies


April 6, 2012

By Stanley Carlson-Thies

The Obama Administration made a good start on protecting religious freedom in last summer’s health insurance regulations but immediately took a wrong turn, proposing a damaging conception of what authentic religious institutions are.  It’s that flawed definition—not opposition to contraception or women’s health services—that fuels the continuing multi-faith opposition to the contraceptives mandate.  Alas, while the administration has proposed various remedies, it has not chosen to fix the flawed definition, which was written into federal law in February despite widespread protest.

Government funding is not the issue—the dispute is about regulations that apply to almost all employee health plans—whether or not the employer receives federal funds. The immediate flashpoint is the objection of many religious organizations to the requirement to cover birth control and abortion-inducing drugs when they make the laudable decision to offer employee health insurance. But the widespread and persistent opposition to the regulations stems from the Administration’s creation of a two-class system of religious organizations.  In this scheme, churches are “really religious,” while faith-based organizations that serve the community are not.  If such an interpretation stands, how will the distinctive identities and practices of faith-based services be protected in the future?

Taking note of religious objections to the use of contraceptives and sterilization, last summer the Administration proposed an amendment to the regulations that require all employers to cover those and other preventive services for women.  Under this amendment, “religious employers” would be exempt from the contraceptives mandate—not because access to preventive services is unimportant but because respecting the freedom of religious organizations to conduct their activities in accordance with their convictions is vitally important.  Religious organizations are a key way that people engage in the “free exercise” of their religion, to use the First Amendment term. 

So what is a “religious employer”? Under the proposed amendment, which is now final, the organization has to fit into an IRS category that only applies to churches, mission societies and seminaries.  And the organization has to hire mainly people of its own religion—a practice of many but not all faith-based service organizations.  And the organization’s purpose has to be the “inculcation of religious values,” not education, or health care, or community development or drug treatment.  And the organization has to mainly serve only people of its own faith. 

Under this definition, Jesus’ ministry wouldn’t qualify as a religious employer—he served people who weren’t Christians; he healed and did not only preach!  A church—but probably not a community-serving church—is religious enough to be exempt, but a pregnancy resource center’s employees will be offered free “emergency contraceptives” such as PlanB and ella even while they spend their days encouraging pregnant clients to choose life for their unborn babies.  Religious colleges are free to witness in word and deed to biblical sexual ethics and yet are required to offer to their employees and students contraceptives that facilitate a different view of sexuality.

Supporters of the health care reform law, such as the Catholic Health Association and Washington Post columnist E. J. Dionne, were among the protesters of this “narrow,” “inaccurate,” “damaging” definition of religious employers, a concept “unprecedented in federal law” and destined to undermine the religious freedom of faith-based service institutions in future federal lawmaking and regulation. 

On February 10 the administration relented—or not.  It gave objecting faith-based organizations a year’s relief while officials draw up a separate “accommodation” for them.  Their insurance companies are to pay for the contraceptives and directly offer them to their employees.  That promised arrangement has satisfied some critics, but others regard it as only a “fig leaf.” And what went into the actual federal rulebook?  The narrow definition of religious employers, the only class of religious organization religious enough to gain an actual exemption.  A further official notice in mid-March only floated ideas and solicited comments, but offered no actual, new rules.

True, that March notice says that the administration intends no precedent by creating two classes of religious organizations, two levels of religious freedom protection—no dishonor to community-serving faith-based organizations.  And yet those are mere words, weighing little against the administration’s actual deeds, which limit the freedom of parachurch organizations that offer “secular” services to the wider world to operate consonant with their convictions.

This is the deep religious freedom mistake that has roused persistent and broad protest.  This is the foundational flaw that must be fixed.

—Stanley Carlson-Thies is the President, Institutional Religious Freedom Alliance




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