February 1, 2013

The Contraception Mandate and Religious Liberty

On Feb. 1, 2013, the Department of Health and Human Services (HHS) proposed new rules that would exempt certain religious organizations, including houses of worship, schools and hospitals, from a new mandate to offer free contraception services to women employees. The new regulations would instead require the nonprofits’ health-insurance providers to offer and pay for contraceptive services. The new proposal is the latest step in a controversy that first arose in 2010, with the enactment of the Patient Protection and Affordable Care Act. The contraception mandate has been the subject of much debate and the object of many lawsuits (read more about public opinion on the birth control insurance mandate). To help explain what today’s announcement might mean for the debate, the Pew Forum asked Professors Ira C. Lupu and Robert Tuttle of The George Washington University Law School to discuss the new rules and the possible outcome of the legal challenges to them.

1. Briefly explain the roots of controversy. How did we get where we are today?

The Patient Protection and Affordable Care Act of 2010 requires employers to offer employees health insurance that provides some preventative medical services free of charge. Part of this mandate includes reproductive health services, such as birth control, sterilization and emergency contraception.

Under regulations drafted by the Department of Health and Human Services (HHS) and other federal agencies in 2011, the contraception mandate would not apply to churches or other religious organizations – if their primary purpose is to inculcate religious values and if they primarily serve and primarily employ people of their faith tradition. Under the 2011 rules, houses of worship were clearly exempt, but other religiously affiliated organizations were not exempt because they have purposes other than promoting religion (such as providing education or health care) and they usually serve and employ people of many faiths. HHS gave these groups an extra year to comply with the mandate – meaning that they would have to offer their employees insurance providing the pregnancy prevention services by August 2013.

Many religiously affiliated organizations criticized the new mandate, and some sued the government in federal court. The opponents argued that the requirement violates the guarantees of religious freedom contained in the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act (“RFRA”) of 1993, which bars the government from substantially burdening religious exercise without having a compelling interest for doing so.

Leading the opposition have been Roman Catholic organizations that oppose abortion and the use of artificial birth control. Some Protestant and Jewish groups that oppose abortion and the use of emergency contraceptives also have sued the government to stop the mandate. Some businesses owned and operated by religious people also have sued, arguing that their religious rights are being abridged. All of the opponents of the mandate contend that they should not be forced to pay for health insurance that provides services that conflict with their religious beliefs. Supporters of the mandate counter that a woman’s access to pregnancy prevention services should not depend on which employer they work for. Supporters also argue that hospitals, schools and other nonprofits, as well as businesses, have no right to impose their religious beliefs on their employees.

In February 2012, President Obama sought to resolve the controversy by proposing a compromise. With respect to religiously affiliated nonprofits that did not qualify for the full exemption, the president proposed that the groups would still need to provide insurance that covered women’s reproductive health, but they would not have to bear any of the financial cost of these services. Instead, in cases where a religious employer objected, the insurance companies that covered the relevant employees would have to bear all of these costs. The compromise did not change the obligations of for-profit businesses.

Many groups that had objected to the original regulations argued that the compromise did not change the situation. Religious organizations would still have to offer their employees insurance that included coverage of reproductive services, they said, and the insurance companies required to pay for these services would find another way to pass along the cost to employers. Furthermore, the details of the president’s proposal were still somewhat uncertain because they had not been fleshed out into regulatory language – until now.

2. Please explain the newly promulgated rules released today by the Department of Health and Human Services.

The newly proposed rules apply to those religious nonprofits, such as schools, hospitals and social service providers, that HHS did not intend to exempt under the original regulations. Under the new regulations, these religious nonprofits may purchase insurance plans for their workforce that do not offer contraception services. If they do so, their insurance provider will be required to enroll the nonprofit’s female employees in a separate policy that only provides contraceptive services. The insurer will be required to provide these services to employees at no cost. In addition, the insurer, rather than the nonprofit, will have to administer the policy and cover its entire cost. For religious nonprofits that self-insure, the proposed rules require that such organizations must select a third-party administrator that would provide contraceptive coverage to female employees.

3. Are the new rules likely to satisfy the nonprofit organizations that have filed suits in federal courts?

From the beginning of this controversy, religiously affiliated nonprofits have objected to being involved in any way in the provision of one or more of these kinds of services to their employees, whether or not the employer directly paid for the services. Some object to all medical forms of contraception; others object only to emergency contraception, which they view as abortion-inducing. But all object to being put in a role where they are helping their employees gain access to such services. In light of these objections, the new rules may not sufficiently relieve these organizations of what they see as “sinful complicity” in the provision of pregnancy prevention services.

4. What is the status of the lawsuits brought by business or for-profit entities against the original Affordable Care Act rules? Could the outcome of these cases affect the lawsuits brought by nonprofit entities?

As of this date, there have been at least a dozen lower court decisions in cases brought by for-profit businesses objecting to the mandate. Other such cases have recently been filed. In a few cases, lower courts have upheld the position of the United States that corporations and other business entities cannot “exercise religion,” the way individuals can. In addition, some courts have ruled that the contraception mandate does not substantially burden religious exercise, and violates neither RFRA nor the Free Exercise Clause.

However, in a larger number of cases, the lower courts have decided that businesses do have the right to bring such challenges and that the mandate does violate the Religious Freedom Restoration Act. Courts in these cases have concluded that requiring businesses to cooperate in the provision of services that the employer views as sinful is a substantial burden, and that the government’s interest in imposing the mandate to provide services is not “compelling.”

The outcome of these cases could affect the cases brought by religious nonprofits. Of course, religiously affiliated nonprofits, organized in part for religious purposes, will not have to overcome any hurdles about whether they can challenge the regulations. But the nonprofits will have claims similar to those of for-profit businesses, even though, under the new rules, the nonprofits will not be bearing the cost of coverage of pregnancy prevention services in the way that for-profit businesses do. But both make the same basic claim: that they are being forced to facilitate what they believe to be sinful activity in direct violation of their religious rights under RFRA and the Constitution.

5. Do you think it is likely that this issue will be taken up by the Supreme Court?

Because the lower courts will inevitably disagree on a number of questions presented by these cases, the Supreme Court is likely to eventually accept one or more of them to resolve those conflicts. In particular, the high court will have to resolve whether for-profit businesses may assert the same claims of religious freedom as individuals and religious nonprofits. It also will need to determine whether the mandate is a substantial burden on the religious exercise of employers of any kind – whether for profit or nonprofit. Finally, if the justices determine that the mandate does constitute such a burden, the court still must decide whether it violates RFRA or the Constitution.

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