There has been a controversy recently regarding new rules coming out of the Health and Human Services office. Those rules require employers to provide contraceptive services with no co-pay as part of the basic services covered by the insurance policies that they offer their employees.
This decision was the result of recommendations of the Institute of Medicine. This is an independent group of physicians and researchers that concluded FDA approved birth control is a medical necessity “to ensure women’s health and well being”. Their recommendations are based on the facts that half of the pregnancies in this country are unplanned and 40% of unplanned pregnancies end in abortion. They project that making birth control more accessible for working women of child-bearing years would reduce unplanned pregnancies and abortions. Their studies added that women with unintended pregnancies are more likely to suffer from depression, smoke, drink, and less likely to seek prenatal care. Those behaviors potentially harm fetuses and put babies at increased risk of being born prematurely with a low birth weight.
HHS has a four-part test to determine exemptions for churches and synagogues, primary schools, and some religious secondary schools. Institutions like hospitals and secular colleges (like Notre Dame) that are affiliated with religious institutions but have a diverse set of employees/students that are not dominated by just one religion are not exempt. It should also be noted that many of these “religiously affiliated” institutions receive significant amounts of federal funding and are accustomed to the regulations that go along with that funding.
The Catholic Church objected strongly claiming that this rule infringes on their constitutional rights to freely exercise their religion.
Because we are in an election cycle, this created a firestorm of criticism directed at the Obama administration coming from the flock of Republican presidential candidates. Several have accused the Obama administration of waging a war on religion.
The final bit of data is that surveys have consistently reported that 98% of sexually active women of child-bearing years in this country who identify as Catholics do use contraceptives. A new survey released by the Public Religion Research Institute says that 58% of all Catholics agree employers should be required to provide their employees with health care plans that cover contraception.
But let’s get back to the interesting questions that this issue raises.
The first is the constitutional right to freely practice religion. The first amendment prohibits congress from passing a law respecting an establishment of religion or impeding the free exercise of religion.
The Supreme Court has determined that these rights are NOT unlimited. Some examples of practices that are not allowed include polygamy and the use of illegal drugs in religious services. At the same time the court has also held that an employee who was fired because she refused to work on Saturdays because of her religious beliefs, still qualified for unemployment benefits (which are funded in part by her previous employer). So employees are not required to surrender their religious beliefs when those come into conflict with expectations of their employer.
In this case, you have the interests of the Catholic Church versus the interests of employees who are not Catholics. The Catholic Church as an employer is required to follow many of the same rules as any other employer. It can’t discriminate based on race, age, or gender. That doesn’t mean that it has to hire women priests, but it does mean that it can’t discriminate against women in non-religious roles. There are similar rules regarding the sort of insurance coverage that every large employer is required to offer. These rules are part of the larger effort to bring down the costs by making sure that every American has access to affordable healthcare.
The basic question here is does the Catholic Church have the right to impose Catholic beliefs regarding contraception on employees who may not share that religion or those beliefs. The imposition is that the Catholic Church is asking that it be exempt from covering expenses in their employee insurance plans that they feel violate some part of their beliefs even though other non-religious employers are not exempt.
The second question is much more practical.
The Catholic Church is advocating that all of their enterprises be exempt from requirement based on a religious belief that isn’t being practiced by 98% of female Catholics in this country.
An analogy could be the speed limit laws. Highway speed limits are rarely enforced. Enforcement begins somewhere above 5-10 mph over the speed limit. That’s because of a number of factors, but the net result is that very few motorists drive at posted speeds on the highway and virtually all levels of government and law enforcement are fine with it.
In the same vein, a more practical response by the Catholic Church would be an opt in system where they would only be required to offer birth control to female employees who either self identified as non-Catholic or explicitly requested the service.
The final question is also much more practical.
The Catholic Church is also an ardent opponent of abortion. One of the primary goals of reducing the co-pays for contraceptives is to reduce unwanted pregnancies and the high rate of abortions associated with them. The data strongly supports the claim that even small co-pays reduce contraceptive use. That leaves one part of Catholic Church in the position of advocating a policy which supports the current level of abortions. Another part of the Church spends millions to reduce abortions and attack the current laws which allow them.
The bottom line is that HHS understood that this would be a challenge for Catholic institutions and provided them a year to work out an implementation plan with the government. The White House has also signaled that they are willing to seek common ground where Catholic beliefs are respected but women are also receiving the care they need. Whether or not they are going to be able to get a deal done is uncertain.
This will likely end up being decided in the courts and in the meantime will be just one more divisive issue that will be passionately argued and widely misunderstood.