Beliefs Politics

Does the contraception mandate really kill religious freedom?

RNS photo courtesy House Government Reform and Oversight Committee.

(RNS) The Obama administration’s policy requiring most employers to provide free birth control coverage in their health insurance policies takes effect on Wednesday (Aug. 1) — a deadline that has sparked apocalyptic warnings from conservative activists and some faith groups.

“August 1st is a day that will live in infamy for the First Amendment and the fundamental freedoms and rights we as a people have enjoyed since the founding of our nation,” said Brent Bozell, head of ForAmerica. “With the stroke of a pen, the Obama Administration has shredded the First Amendment and the Constitution right before our eyes.”

Bishop William Lori of Bridgeport, Conn., far left, testifies on the Obama administration's contraception mandate with other religious leaders at a Feb. 16 hearing of the House Government Reform and Oversight Committee.

Bishop William Lori of Bridgeport, Conn., far left, testifies on the Obama administration's contraception mandate with other religious leaders at a Feb. 16 hearing of the House Government Reform and Oversight Committee.

“August 1st will be remembered as the day our most cherished liberty was thrown in a government dumpster and hauled away,” echoed Matt Smith, head of Catholic Advocate. And that’s just a sampling of the outrage.

Are the claims legitimate? As with most federal regulations, it’s complicated, and the supercharged politics of the issue, in the midst of a presidential campaign, don’t help.

Moreover, religious freedom is by its nature a topic that prompts heated debates — without always providing a clear answer.

Questions of religious liberty always necessitate compromises and judgment calls. Religious believers don’t have an unlimited right to refuse medical care for their sick children, for example. And nonbelievers don’t have an unlimited right to banish every religious symbol from the public square. Most cases are not even that clear-cut — and there are always enough controversial cases to keep tempers on the boil.

As far as the contraception mandate goes, the simplest answer to the question of whether religious freedom ends on Aug. 1 is no — or at least not yet.

Faith-based groups who claim to have religious objections to providing health insurance that covers contraceptives and sterilization have a “safe harbor” until Aug. 1, 2013 before the mandate would take effect for them.

Even then, the mandate may not force them to compromise their beliefs. The Health & Human Services Department is still weighing proposals that could expand or change the exemption already set out for religious groups.

Still, many activists and groups, chiefly Catholic hospitals, universities and social service agencies, object to the scope of the HHS exemption for religious groups, saying it is too narrow.

The HHS has proposed a complex policy that would allow require insurance companies, rather than employers, to pay for the contraceptive coverage, so that religious institutions would avoid any entanglement in providing the insurance. Some say that proposal would resolve the problem — but not all are convinced.

In the end, the courts are likely to decide the matter. Two federal judges, in separate cases, have already told plaintiffs that they cannot sue to block the mandate because it would not affect them until next August at the earliest. And even then, the judges noted, the mandate may not violate their religious freedom. 

Other religious institutions that object to the mandate, chiefly Protestant bodies, may not be eligible for the one-year safe harbor because they already provide contraception in their insurance. Because they offer a service that the mandate requires, they are not seen as having standing to object to a regulation on faith-based grounds. Many would disagree with that judgment, and so would see the mandate as impinging on religious freedom. 

Private companies whose owners provide employee health insurance and who have religious objections to contraceptive and sterilization throw another twist into the debate.

That was the argument made by Hercules Industries of Colorado, an air-conditioning products manufacturer that is owned and operated by a Catholic family. Last Friday, a federal judge issued a temporary injunction blocking the mandate from being applied to Hercules.

District Judge John Kane in Denver saw a possibility that the mandate could represent a “substantial burden” on the Hercules owners' freedom to practice their religion freely. He ruled that the mandate should be blocked for that company until the merits of the case are decided.

“The injunction is specific to that one company, and it holds only until the judge can reach a verdict on the case’s merits,” wrote Sarah Kliff who covers health policy for The Washington Post. “Still, it could mark the start of a long period of litigation involving one of the health-care law’s most polarizing provisions.”

The bottom line is that much is unclear at this point, and much could change in the next year.

Republican presidential candidate Mitt Romney has vowed to undo the contraception mandate if he is elected, which would make the point moot. The Obama administration could significantly alter or expand the exemption or the policy itself. And the courts will eventually have their say, and could rule one way or the other.

This means that any resolution will be some time off, and the only certainty is that the political lobbying on both sides — and the apocalyptic rhetoric — will continue to cloud the issue.

About the author

David Gibson

David Gibson is a national reporter for RNS and an award-winning religion journalist, author and filmmaker. He has written several books on Catholic topics. His latest book is on biblical artifacts: "Finding Jesus: Faith. Fact. Forgery," which was also the basis of a popular CNN series.

9 Comments

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  • It is too bad that we the people can not directly mandate political reform for politicans instead of letting them write their own laws.
    It would be nice if…
    Campaign contributions came only form living individual humans.
    A maximum amount of $1000 per election cycle. This would be like the “one man, one vote ruling”.
    Each contribution came from a legal of that state, congressional district and traceable.No slush jars or boxes, each penny must be have a name attached to it.
    Only donations from voters of that state, county and so forth could donate. No outer state or congressional district. The donation must come from only from the people in the contested area. This should make the candidate ore accountable to his/her voters.
    Even in federal contests every penny must be traceble. A current up to date account of donations and expenditures to be published every thirty days in newspapers andon the internet. Failure to do so would result in a fine equal to the donations of the missed period. Payable at time of missed report not at the end of an appeal process.

  • That the administration has the power to regulate the mandate, means that it is no longer a right, but a consequence of the government’s good graces. That is why it is a threat to religious freedom.

    Dan, I disagree. We have freedom of association and freedom of expression on the same amendment. That means that individuals can associate with each other and express themselves. It is not up to the government to determine how are they to associate to each other when pursuing political goals. These associations could also be corporations, or associations of shareholders. Corporations are people. I am glad the SCOTUS ruled that way with Citizens United. Now, not only rich people will have access to financing, but people who can convince rich people to finance them.

  • This article suggests that only a few unimportant religious groups and conservatives are claiming that the mandate violates religious freedom. Actually, it’s the entire Catholic hierarchy unanimously and even the liberal Catholics like Sister Carol Keehan of the Catholic Hospital Association who originally supported ObamaCare. It’s also many Protestant groups and colleges. It is not just a few people. Even if one is persuaded that the ruse of having your insurance company (which you pay for) cover the contraception and chemical abortions instead of paying directly soothes one’s conscience, this does not help organizations that are self-insured such as EWTN. And what about private individuals? Do we not care about their conscience rights? Obviously Mr. Gibson does not.

    As for the courts, at least one federal court upheld the rights of Catholic-owned Hercules Industry. Here’s the decision: http://www.adfmedia.org/files/NewlandPI.pdf

    This will go to the Supremes if it is not struck down completely by a new president and Congress.

  • Mr. Gibson, you are a lying commie fascist, a mass-murderer, and a traitor. May you and all your fellow baby butchers be fed feet-first to a wood chipper by the Islamists… before you go to Hell to burn forever as you are already assured you will by your Satanic worship of this totalitarian usurper government and its murderous un-American, anti-religious abortion mandate.

  • I’d add the some religious people have great moral concern about uncontrolled population growth and little concern about contraception.

  • Oh, it’s the old “Stick your head in the sand and maybe you won’t see it coming.” argument, huh?

    Wonder how that worked out for the Jews in Nazi Germany?

  • A little honesty would have been helpful. Constitutional rights are not the stuff of temporary injunctions, case by case waivers by some unknown bureaucrat, or safe harbors that may extend our rights until some magic date on a calendar is published on page 843 of the federal register. Honesty would have helped if, in the final vote, the President told the objecting Congressman Stupak et al, that he would never permit this. They wanted the Hyde amendment, our law for two generations, to calm the church – state conflict.

    This stinks. It will stink until the SC rules it illegal, or the sneaky law is reformed, or the bureaucrats are fired. Obama blew it badly. This is on him.

  • For the Roman Catholic institutions that now must provide contraception (something that they stand against) yes, it tramples their religious freedoms. For LCMS Lutherans and other Protestant organizations, who do not preach against non-abortifacient forms of contraception but since they believe that life begins and conception, being forced to provide abortifacient drugs that essentially kills the life begun and conception, this is very much a trampling of their religious freedoms. The end result with inevitably be that the organizations will simply have to decide whether to go against their stated beliefs and provide the abortifacients or stop providing healthcare all together. When one considers the effect of having the religious organizations exit the healthcare business (Catholic, Baptist, Lutheran Hospitals for example) the result of this legislation is going to have a deeply felt impact on our society. That matters not, as long as the administrations backward, intellectually bankrupt and historically disasterous policies are put into place. As for those that still support this administration due to their short-sighted intellectual laziness, I guess you have it coming.

  • Why should I pay for someone else’s birth control as a Christian or otherwise. If you want to screw around, pay for it yourself, as I always did growing up. Enough of the freeloaders expecting the rest of us to pick up the tab and worse yet, in this case, forcing us to pick up the tab even if it goes against our beliefs. This situation is yet another demonstration of how the left at its core is a belief in control, not freedom. Leftist beliefs are fundamentally anti-freedom.

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