by Craig Klugman, Ph.D.
Many women in this country gained insurance coverage for their contraceptive costs under the controversial Affordable Care Act (ACA). One of the many challenges that have been levied against this law is the so-called contraceptive mandate, a requirement that all employer-sponsored plans cover the costs of contraceptives.
When it was announced, this mandate caused uproar from religious communities that believe contraception is immoral. In response, the Obama Administration altered the ACA to exempt health plans sponsored by religious employers, mostly houses of worship, from using their funds to pay for contraception. To be classified as a religious employer, the entity must “serve those who share its religious tenets and otherwise have inculcation of religious values as its purpose” and is a non-profit registered with the IRS. Instead, other money that does not come from the organization covers contraception. For most groups, this was an acceptable compromise.
But not all groups were satisfied with this response. In the last several months four separate lawsuits against this portion of the ACA have been going through the courts:
- Little Sisters of the Poor is a Catholic women’s order in the United States and around the world. The Sisters successfully petitioned the U.S. Supreme Court for a stay against abiding by the portion of the Affordable Care Act (ACA) that requires employer-provided health coverage to include contraceptives.
- One of the nations largest crafts stores, Hobby Lobby, has asked the Supreme Court for an exemption from the ACA contraceptive mandate for certain interventions such as Plan B and “the pill.” They have no problem with paying for other contraceptives.
- The University of Notre Dame requested a U.S. Court of Appeals to exempt that institution from the contraceptive mandate. A lower court had rejected an earlier request.
- Conestoga Wood Specialties petitioned the U.S. Supreme Court for a contraceptive mandate exemption on the claim of violation of the beliefs of the religious owners of this for-profit family business.
These are all cases of institutions not recognized by the U.S. government as a religious employer, asking to be exempt from federal law. Two are private for-profit businesses which claim to manage according to their “Christian principles.” One is an institution whose primary mission is education and a third is a religious order that provides care for many women. All four claim the need for an exemption because their religious beliefs prohibit them from following the law. Their claims are based on the notion of “religious freedom.”
Let’s make no mistake about it, this is not religious freedom as mentioned in the U.S. Constitution, which forbids Congress from “the establishment of religion.” It is an attempt to force the U.S. government to recognize not an individual’s religious freedom, but that of an organization. This is a request for private groups or organizations to be able to legally force their religious beliefs on others—people who work for them but may not share their religious values. It is a request for a right to impose one person’s beliefs on another.
Of course that concept is not new. In many states “blue laws” exist to prevent secular activities on Sundays. Theses statutes prohibit the sales of alcohol, goods or services (such as cars and groceries) as well as hunting and gambling on Sundays when people should be in church, not out shopping (or getting drunk). Many other states have abolished such laws and there are groups working to have the statutes repealed. After all, some religions have their holy days on Saturday or even Friday. Isn’t forbidding them from commerce on a non-religious day a violation of their rights? Aren’t these laws a government established preference for Christianity over all other religions?
One question is whether employers ought to be allowed to force their employees to follow the company’s or the owner’s religious beliefs even if the employee does not follow that. Some of these companies begin their workdays with prayer and bible study sessions. Does a right to religious freedom for an organization outweigh the right of the individual? This is a question that the courts are being asked to answer. And since the Citizens United vs. Federal Election Commission (2010) decision by the U.S. Supreme Court which essentially granted the status of personhood to companies, they might indeed have such a legal right. But ethically, such a right would be in the wrong. Corporations are not individuals. Individuals should not be subservient to the corporate overlords.
The idea of an employer being able to force its religion on its employees is abhorrent. It reminds me of several scenes in the film Twelve Years A Slave where the master leads the slaves in religious teaching. Is the autonomous individual nothing more than a pawn to the corporation? Or must we choose our employers based on whether our religious beliefs (or lack thereof) match theirs?
The hubris of these lawsuits ignores the fact that contraception has other uses than preventing pregnancy. For the pill, those include lower cancer risk, clear skin, less painful periods, relief from endometriosis, and irregular menses. Condoms reduce the risk of transmission of sexually acquired infections. According to the Guttmacher Institute for research on sexual and reproductive health, 99% of women aged 15-44 have used at least one method of contraception and 62% of all women of reproductive age in a 2013 study were using contraceptives. Even 89% of Catholics use contraception. An appeal to popularity is a logical fallacy, but these statistics do suggest that the numbers supporting these radical positions against contraception are in the minority.
What is behind this idea of “religious freedom” is not freedom at all but rather a right to discriminate against others. Consider a new bill passed by the Kansas House of Representatives would make it legal to discriminate against gay people (specifically gay couples) in any and all aspects of life if their being gay offends your religious sensibilities. A gay couple comes to rent an apartment, you can legally discriminate. You learn that a a long-time employee has gotten married…to a same-sex partner, you can legally fire him/her. And if the same-sex couple sues for discrimination, the law prohibits them from winning and even requires that they cover all legal costs for the religiously observant person who discriminated against him or her in the first place. Oh yes, the right to religious freedom is all about a right to be intolerant and discriminate against those people who are just different.
These lawsuits must be ruled against. Based on our national history of individual rights and freedoms, the individual’s rights must always come before a corporation’s rights. A person must not be required to follow his or her employer’s religion nor should that employee be forced to forgo medically indicated, safe and legal medical care. Institutions should not be exempt from secular law because it violates some belief. Even the Christian Gospels state “Render unto Caesar the things that are Caesar’s, and unto God the thing that God’s,” thus suggesting a separation of church and state. The Obama administration made reasonable concessions to allow recognized non-profit religious organizations to follow their conscience and still not deny the health care rights of their employees. Private corporations and those who business is primarily other than religion should not be permitted to impose their beliefs on others. And the right to discriminate against others must never be ensconced in law. Our nation’s history is a march toward more inclusiveness and less discrimination. Turning citizens into second class entities is not acceptable.
This is not about freedom of religion; it is about the freedom of an employer to discriminate and to impose his or her religion on others. And depending on what happens, employees may end up having to sacrifice their careers and well-being for personal freedom. Right now, as a consumer, I can simply choose not to give my business, donations, or attention to such groups. I know several private companies where I won’t be shopping and one state I will not be visiting.