Should employers get religious exemptions from covering workers’ birth control? | Pro/Con
For the third time in six years, a case that arose in Pennsylvania has taken the question of birth control insurance coverage to the Supreme Court.
On May 6, the Supreme Court heard arguments from the Pennsylvania Attorney General’s Office taking issue with the Trump administration’s expanded exemptions for churches and some private businesses in covering employees’ birth control. The exemptions allowed more organizations to opt out of providing their workers no-cost access to birth control, due to their owners’ religious beliefs.
SCOTUS is now considering the case against these exemptions that was brought by Pennsylvania’s attorney general and backed by New Jersey’s attorney general. An attorney and a reverend debate: Should employers be allowed these exemptions?
YES: Religious freedom should beat a restrictive government mandate.
By Linda A. Kerns
Pennsylvania so desperately wants the Little Sisters of the Poor to provide free birth control as part of their employer health insurance plan, the battle ended up in the Supreme Court. Why does our commonwealth persist along this unreasonable path to compel the nuns to provide contraceptives and defy their faith?
Virtually all reasonable persons would agree that Catholic nuns, who take vows of chastity and poverty, oppose the use of birth control such that beyond refusing to use or fund it, they do not even want to be involved in passively facilitating it. Notably, some birth control includes abortion-inducing drugs, methods antithetical to Catholic teachings. The brewing dispute, however, runs deeper than birth control to confront an age-old question: If our government intrudes on religious liberties, can we really call ourselves free?
The 2010 Affordable Care Act mandated that health insurance plans provide no-cost access to birth control. This signature feature of Obamacare triggered an avalanche of lawsuits, many claiming that the Religious Freedom Restoration Act signed into law by President Bill Clinton in 1993 required exemptions for religious objectors like churches or religious orders. Other exemptions abounded for nonreligious reasons, such as the size of the employer or the grandfathering of long-in-existence insurance plans. Thus, many women went without employer insurance-funded free birth control and built-in workarounds. Government begrudgingly went along.
The Little Sisters, a congregation of women that minister to the poor, did not meet the definition of a church or religious order as defined by the law, and were too large an employer to qualify for secular exemption. They faced a conundrum: comply with the mandate even if it violates religious beliefs, or break the law. The Obama administration offered an accommodation: sign a form authorizing the disputed services to be provided, just not by their plan. But the Little Sisters remained steadfast: they wanted no involvement in birth control whatsoever, even via permitting someone else to handle it. The Trump administration seemingly solved the problem by expanding exemptions to include the Little Sisters.
However, Pennsylvania filed a lawsuit against the president and others, seeking a nationwide injunction to stop the exemption. New Jersey joined in. Why pick on the Little Sisters?
Why pick on the Little Sisters? It all comes down to fear of losing control.
It all comes down to fear of losing control. When a government issues a mandate, it essentially commands the citizenry to take a certain action. When citizens rebuff these authoritarian exercises, the fissures in the government’s stronghold of power widen. The progressives in power in Pennsylvania and New Jersey understand that expanding religious exemptions comes at a cost: the erosion of the influence that accompanies a powerful mandate.
Those cheering on religious freedom could not ask for a better media-ready plaintiff. The Little Sisters formed in 1839 and, as their name suggests, minister to the poor worldwide. Notably, they provide end-of-life care to the elderly and currently nurture senior Americans stricken with the coronavirus. If progressives want to convince the general public that birth control should be an American right funded by all employer health insurance plans, perhaps insisting that chaste and charitable nuns pay for it is not a winning strategy.
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At long last, the Supreme Court may finally settle this matter. Those who value liberty should be grateful the Little Sisters took up this fight. Their unflinching resolve to stay true to their religious beliefs reminds Americans to never be complacent in protecting freedoms. If government will go after the Little Sisters in pursuit of a progressive agenda, next time it might come after you.
Linda A. Kerns is an attorney and a cofounder of Broad + Liberty. lkerns@broadandliberty.com @lindakernslaw
NO: True religious freedom does not mean limiting the rights of others.
By Rev. Dr. Marvin A. Marsh
With the Trump v. Pennsylvania case, the Pennsylvania Attorney General’s Office is up against the Trump administration attempting, once again, to further protect employers and universities that invoke religious or moral beliefs to deny birth control coverage to employees and students. How this case is decided could open the door for bosses and school administrators to restrict coverage and access to other critical health care.
I have been a Baptist pastor and faith leader for over 45 years. During that time, I have been privileged to accompany persons from both church and community through some of their most difficult moments. I know how essential affordable reproductive health care is to persons of faith as they plan if, when, and how they will become parents.
My work as a pastor is grounded in compassion. My faith leads me to defend the freedom of all persons to receive the health care they need regardless of their ability to pay. What my faith does not do is permit me to impose my beliefs on others. My Baptist heritage has long instilled in me the cherished value of religious freedom. But true religious freedom means letting people make their own decisions — about morality, religion, and health care — based on their conscience, free from employer or government interference.
Everyone has the capacity, right, and responsibility to make decisions about their reproductive lives.
As a person of faith, I value every person as a moral decision-maker. Everyone has the capacity, right, and responsibility to make personal decisions about their reproductive lives — guided by their own conscience, faith and beliefs, and personal circumstances.
When the government privileges the rights of one religious group over others, everyone suffers. Many religiously affiliated organizations, such as churches, schools, hospitals, and relief organizations, employ people in all sorts of roles without regard to their personal faith identification. Doctors, nurses, bookkeepers, teachers, janitors, and more should not be expected to sacrifice health-care coverage because their employer opposes personal decisions that have nothing to do with their jobs. Restricting access to contraception has devastating consequences for women and families, especially those with low incomes.
Many faith communities maintain silence around reproductive health care, including access to birth control. I believe those seeking to use religion as a cover for limiting reproductive health-care access are counting on that silence to get away with it. But we have not always been silent. In fact, beginning in the late 1920s, many Jewish and Protestant groups formally endorsed contraception access. This included rabbis from Reform and Conservative Judaism and ministers from Episcopal, Baptist, Congregational, Methodist, and Presbyterian churches.
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Decades later, in 2012, more than 1,000 faith leaders from dozens of states and religious traditions signed an open letter declaring that “[n]o single religious voice can speak for all faith traditions on contraception, nor should government take sides on religious differences. We oppose any attempt to make specific religious doctrine concerning pregnancy, childbirth, or contraception the law of any country in the world.”
It is time for people of faith and conscience once again to speak out against this cynical use of one of our most cherished liberties. Let’s remind our leaders that — particularly amid a pandemic — our government should be protecting America’s workers and students, not putting their health at risk and calling it religious freedom. Religion should never be used to take away the rights of others.
Rev. Dr. Marvin A. Marsh is a retired Baptist pastor and board chair of Planned Parenthood of Southeastern Pennsylvania. A version of this piece first appeared in the Pennsylvania Capital-Star.