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

Measuring Justice in the Contraceptive Mandate

Joanna Stephens


By Joanna Stephens

In carving out a religious exemption to a new federal rule requiring employers to provide coverage for contraceptives in their health insurance plans, the Department of Health and Human Services (HHS) included a protection in the right direction, but stopped short of extending it far enough. HHS announced last month that while churches wouldn't be bound by the rule, the exemption would not cover religiously affiliated hospitals, schools and other faith-based, non-profit organizations—let alone faith-based for-profits. Instead, organizations with religious objections will have twelve months to incorporate the coverage, with no added cost-sharing to their female employees.

In defense of the decision, HHS Secretary Kathleen Sebelius argued that the new policy achieves an appropriate balance between religious freedom and health care reform, stressing that "the administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good."

While it is the prerogative of government to adjudicate between competing social entities and public interests, the Administration needs to be reminded that religious liberty itself is a common good. To be sure, the nation's founders wanted protections for the church in part because of the public good they felt it encouraged in society, but more specifically they drafted the free exercise clause because freedom of conscience is a fundamental human right—for both individuals and, by extension, organizations.

Christian conscience differs on appropriate family-planning measures, but in evaluating the issue, Protestants who do not share the Catholic Church’s convictions on contraception should nevertheless consider the wisdom of Dutch theologian and statesman Abraham Kuyper, who noted, "the highest duty of the government remains unchangeably that of justice, and in the second place it has to care for the people as a unit." 

If the Obama administration is to uphold justice above all else, it must ask itself two parallel questions: First, in what ways would applying the contraceptive mandate to faith-based organizations affect the larger cause of justice? And what are the consequences, to justice, of not requiring them to adhere to the rule?   

Contemplating the first question, the answer is clear. The HHS ruling not only violates the First Amendment, but also the government’s own Religious Freedom Restoration Act, which says the government cannot substantially burden a person’s free exercise of religion unless it uses the least-restrictive means to further a compelling public interest.

In aiming to promote free, universal access to contraceptives, the administration could have proposed alternatives to the mandate, like further subsidies to current distribution centers or vouchers for women who wouldn’t be covered under their abstaining employers. While these options would still ultimately be financed by both approving and disapproving taxpayers, they are far less restrictive than forcing faith-based organizations to compromise their beliefs. The contraceptive mandate undeniably impinges on religious freedom and is a setback to justice.

Answering the second question is thornier. After all, what of the justice for thousands of women working for these organizations who will not have employer-subsidized coverage unless the rule is enforced?

Supporters of the mandate argue that the government has a compelling public interest to reduce the number of unwanted pregnancies each year, especially among the economically disadvantaged.  While numbers confirm that the majority of American women use contraceptives, including women of faith, the government's role should not be simply polling public opinion and instituting social policy in response. Improved family planning is a valid aim, but with several options for free contraceptives at clinics, hospitals and other reproductive health organizations, women are not being denied the right to choose preventative services for themselves, nor are they currently required to ask permission from their faith-based employers for pursuing these avenues. An unjust infringement on individual freedom and privacy does not result from extending the exemption.

In weighing its dual call to promote justice and serve the public good, the state should create policy that balances the goals of the different societal spheres under its governance. With the recent ruling, however, the current administration is being an ineffective steward of its role to uphold justice, effectively allowing the sphere of the family to force the sphere of the church to pay for its personal reproductive decisions.  And in the long run, if the ruling stands and faith-based organizations—as a matter of conscience—are forced to drop their health insurance plans altogether, both employer and employee will suffer injustice at the hand of the federal government’s rigidity with this mandate.

—Joanna Stephens is an architectural designer in New York City. She was a 2011 Gotham Fellow, which is an intensive program integrating faith and public life hosted by The Center for Faith and Work at Redeemer Presbyterian Church.

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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.”