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

The Contraception Mandate Violates Religious Freedom

Chelsea Langston


by Chelsea Langston

Earlier this year the Department of Health and Human Services (HHS) issued an interim federal rule requiring all health insurance packages to include “preventative health services,” i.e., birth control and sterilization, with no extra cost-sharing, to their female patients.  After soliciting comments from the public, HHS will issue a final version of this regulation sometime in the coming weeks or months.  The proposed rule provides an exemption for churches, but not for many religiously connected non-profit organizations, such as educational institutions, hospitals, social services groups, and other charities. Many faith-affiliated groups are concerned that this exemption is too narrow.  The proposed exemption language only protects an institution if it:  “(1) has inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization.”   

Catholic organizations are particularly dissatisfied with these proposed regulations. Catholic clergy and supporters have pointed out that the proposed exemption would require religiously connected institutions to try to convert everyone they serve or to turn away people who didn’t share their religious convictions.  Jesus himself would not have been qualified for this conscience protection, argue many opponents the proposed exemption, because He did not limit his scope of service to only His professing followers (John 4:3-42). As written, the conscience protection language would presumably not apply to faith-based hospitals or universities, where many employees, patients and students do not share the faith-based organization’s religious beliefs.  Moreover, in these institutions, the primary function of the organization is generally to meet medical or educational needs, not to convert everyone receiving services.  Requiring religiously-affiliated groups to provide birth control and sterilization options to their female employees as a component of their health insurance packages is essentially forcing these organizations to choose between compromising their beliefs and ceasing to offer prescription services altogether.  Never before in the history of our nation has the federal government required private, faith-based employer health insurance plans to cover contraceptives if they cover any other prescriptions.

Some proponents of the requirement to provide contraceptive coverage cite the fact that there are many religiously affiliated institutions that already offer women employees birth control options as part of their healthcare plan.  However, each faith-based organization, like each secular organization, is distinct—with its own unique structure, priorities, and mission.  Simply because one historically Catholic institution already provides contraceptive options to its employees as part of its health insurance package does not automatically mean that every Catholic organization should have to take the same measures.  Institutional religious freedom does not imply that once one faith-based group makes a decision, or takes a stance on an issue, that every subsequent, seemingly similar, religiously-connected organization will come to the same conclusions.  The Center for Public Justice, in its Guideline on Religious Freedom, describes religious freedom as follows: “Religious freedom entails not only freedom of conscience and worship; it also includes the right of citizens to conduct themselves in public life without legal or financial discrimination due to their religion.”  That is the key point to this discussion specifically: that religious freedom entails acts, whether individual or institutional, beyond freedom of conscience and worship.  By its very nature, faith-based liberty must embrace the protection of an individual or organization’s religious tenets and character. 

Advocates of these proposed birth control regulations point out that 28 states already have statutes requiring that private healthcare plans cover birth control. This argument is flawed on several levels.  First of all, the vast majority of states with contraceptive coverage mandates also have protections for religious organizations.  It is true that the extent of protection varies from state to state, and that some states do not exempt faith-affiliated schools, hospitals, and social services organizations (although they should).  But the adoption of such a mandate by the federal government violates the rights of faith-based groups to define and fulfill their own religious character.  The Center for Public Justice has long been a proponent of the government’s proper role in respecting the freedom of faith-based organizations, stating that “faith-based organizations….should not feel pressured to abandon or suppress their faith character.”

—Chelsea Langston is an attorney in Michigan. She works for the non-profit organization Common Ground in their Legal Services Program. She participated in the Civitas program at the Center for Public Justice in 2010.

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