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Are the proposed HHS mandate exemptions enough?
Rhetoric Versus Reality: The Contraception Benefit and Religious Freedom
By Elizabeth Sepper and Alisha Johnson | April 9, 2013
Editor’s Note: The comment period for the latest proposed accommodation to the Affordable Care Act’s requirement to provide contraception coverage ended on April 8. We asked legal thinkers if this round of proposed exemptions to the HHS mandate is adequate.
The Catholic bishops argue that the Affordable Care Act’s requirement that health plans include contraception violates religious freedom for both religious and secular corporations. Their counsel, Anthony Picarello, has indicated they will not rest until even a Taco Bell franchise owned by a Catholic is exempted from the law. For-profit businesses have joined religiously affiliated non-profits in filing suit to avoid providing their employees coverage for contraception. Most prominently, Hobby Lobby, a for-profit crafts store chain with 13,000 employees, has defied the insurance requirements in the name of free exercise of religion.
To hear these claims, one might think that religious freedom is under attack. But the rhetoric does not match reality. The contraception benefit rule strikes a delicate balance. It provides broad protections for religiously affiliated employers. At the same time, it protects the freedom of all Americans to live out their own religious and moral convictions.
Under the Affordable Care Act, health insurance plans must cover preventive services for women without cost-sharing. This includes all FDA-approved contraceptives from birth control pills to sterilization. This contraception benefit rule addresses pressing problems of gender inequality in healthcare and barriers to obtaining contraception. It recognizes that more than half of women between 18 and 34 cannot afford birth control. Due in large part to the price of contraception, almost half of all pregnancies in the U.S. are unintended. These pregnancies lead to poorer health outcomes for mother and child, and higher costs. Our workforce also suffers, as women abandon their professional and educational goals to have children before they are ready.
In acknowledgement of the varied religious teachings on contraception, the rule, especially with its latest proposed exemptions, provides generous accommodation for religious employers. Those that primarily employ and serve co-adherents, like churches, are entirely exempted from the rule and are not required to provide contraception coverage. Religiously affiliated non-profits, like hospitals, universities, and social service providers, also enjoy broad exemptions. They may exclude contraception from their plans and will not have to contract, arrange, pay, or refer for coverage. But their employees will still have access to contraception through a separate policy provided by the insurance company. Although one might think that the employer ultimately pays for this policy, contraception coverage saves at least as much as it costs and, therefore, is cost-free.
Secular, for-profit corporations, by contrast, must comply with the contraception benefit rule. A wide range of businesses, including food processors and craft stores, have objected to this requirement. They argue that the law forces them to either conduct business in a way that violates their religious beliefs or pay hefty penalties to the government.
But can for-profit companies exercise religion? Companies do not have beliefs or attend services. For-profits are not designed to bring believers together or carry out the mission of a church. They exist to maximize profit; their concern is the bottom line. Our legal system recognizes this difference, and regularly subjects for-profit businesses to regulation while exempting some religious non-profits.
Some say that the shareholders, or owners, of corporations nonetheless have religious beliefs that are burdened by the rule. But our laws do not require exemptions for every claim of religious belief. Instead, under the Religious Freedom Restoration Act, laws are only suspect if they produce substantial burdens on free exercise of religion. Where the law furthers a compelling government interest, as the contraception benefit does, even substantial burdens can be justified.
Here, any burden on the owners’ free exercise is insubstantial. It is the corporation, not its owners, that must offer a plan with contraceptive coverage or pay higher taxes. As the Supreme Court has noted, the very purpose of incorporating a business is to create a distinct legal entity with legal rights and obligations separate from the individuals who own it.
Owners of for-profit corporations do not have to purchase or take contraception. They may speak against it and live their lives in accordance with their religious beliefs. Their involvement in the perceived wrongdoing of purchasing or using contraception is highly attenuated.
The employer’s alleged burden becomes even weaker when we consider that health insurance, like wages, is compensation that employees earn. When a corporation purchases a health plan that its employees and their families use to buy contraception, it is no more paying for contraception than it does when employees use their wages to buy it. A basic principle of health economics is that there is a tradeoff between wages and insurance. As a recent study in Massachusetts showed, employees pay almost the full cost of their insurance benefits through lower wages.
A serious burden, however, would fall on employees if their employers were excused from compliance with the contraception benefit rule due to their religious objections. Secular, for-profit corporations could then successfully use religion as a shield against any number of laws that promote workers’ health and safety. Some businesses might resist coverage of prenatal care for unmarried pregnant women or STD screening, based on the belief that non-marital sex is immoral. Others might challenge vaccinations or depression screening on religious grounds.
As the Supreme Court has observed, bowing to an employer’s objection to an insurance scheme for employees ultimately “operates to impose the employer’s religious faith on the employees.” The contraception benefit rule instead safeguards the religious freedom of each individual. Women, men, and their families will be free to decide whether to use contraception based on their own conscientious beliefs.
Elizabeth Sepper in an associate professor of law at Washington University in St. Louis. She is a health law scholar whose work explores the interaction of morality, professional ethics, and law in medicine. Alisha Johnson is a research assistant and law student at Washington University in St. Louis.
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