Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.

Sources:

http://www.reuters.com/article/2012/03/01/us-healthcare-contraceptives-poll-idUSTRE8200C320120301

http://www.npr.org/2012/02/10/146710901/catholics-have-mixed-reaction-to-birth-control-reversal

http://www.chicagotribune.com/news/politics/sns-bc-apfn-us–birthcontrolpolitics,0,231697.story

http://www.lifenews.com/2012/02/15/sebelius-didnt-talk-to-bishops-about-obama-mandate/

http://www.christianpost.com/news/obamas-birth-control-mandate-unlikely-to-win-court-challenges-legal-scholar-says-70598/

http://www.foxnews.com/politics/2012/02/24/7-states-sue-to-block-contraception-mandate/

http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-jfks-1960-speech-made-me-want-to-throw-up/

http://www.npr.org/templates/story/story.php?storyId=146663659

http://thehill.com/blogs/congress-blog/healthcare/210863-president-obama-and-bishops-should-keep-talking

http://www.mpnnow.com/opinions/x1676726073/EDITORIAL-Bishops-Obama-should-work-this-one-out

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2 thoughts on “Who Should Pay? American Birth Control and The First Amendment

  1. Neal Miller March 6, 2012 at 1:55 pm Reply

    Very good read and very insightful. Issues such as these go unnoticed to those not informed or keeping up with today’s politics and policies. So I applaud your efforts in shining light where the light need to be shined.

    • Neal Miller March 6, 2012 at 1:56 pm Reply

      “where the light NEEDS to be shined”

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