Should the Church, State or the Courts say whether an employer
health plan must provide preventative medical services, including
birth control, at no cost to patients?
Many might answer "none of the above" under the
impression that no one should be making that call. But, as we
speak, all three entities have thrown their hats into this ring of
fire.
It's a tossup as to who was really the first to weigh in.
Undeniably, religious organizations have historically been known to
have strong opinions on birth control in general. Thus, many might
argue that the Church has at least implicitly had a say in this
matter for some time. The State, however, held no punches when it
passed The Patient Protection and Affordable Care Act, a/k/a
"Obamacare," which requires employer-provided health
plans to provide no-cost contraceptives to workers by August 1,
2012. The PPAC is full of various insurance mandates, but since
some employers are religious organizations with some particular
views on birth control, this birth control mandate was ripe for
controversy. Perhaps in anticipation of this very issue, the PPAC
has a narrow exemption for "religious employers" who meet
the following four criteria:
1. The "inculcation of religious values" is the religious employer's purpose,
2. The employer "primarily employs persons who share its religious tenets",
3. "It primarily serves persons who share its religious tenets", and
4. It is a non-profit organization under sections of the code that "refer to churches, their integrated auxiliaries, and conventions or associations, as well as to the exclusively religious activities of any religious order."
This exemption is narrow indeed - employers who are also houses
of worship may opt out of free birth control benefits, but
religiously-affiliated charities, hospitals, and schools may
not.
In defense of those employers who are not exempt, forty-three
Catholic dioceses (including Dallas and Fort Worth) and
institutions (including the University of Notre Dame) have filed
suits in federal courts in eight states against various
governmental officials, including Secretary Sebelius, challenging
the birth control requirement as violative of the First Amendment.
At least eleven other cases were previously filed and remain
pending, and attorney generals in seven states have filed suits
which are also yet to be determined.
So this means that the Courts may end up with the final say over
who should pay for birth control. The Courts will be guided by the
First Amendment admonishment:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof..."
If a law restricts a constitutional right such as freedom of
religion, it must meet three "strict scrutiny" criteria
to remain valid:
- It is justified by a compelling governmental interest,
- It is narrowly tailored, and
- The law or policy is the least restrictive means for achieving that interest.
The Catholic clergy say the requirement is an unprecedented
attacked on religious liberty because it compels Catholic employers
to provide access to services that are contrary to their religious
beliefs. Proponents of the measure argue it provides greatly needed
medical benefits for women and impacts health.
How the litigation will resolve is difficult to guess. What we do
know is that it may take years for the cases to work their way
through the federal district and appellate courts and that neither
side is likely to back down until there is a conclusive ruling from
the United States Supreme Court on whether the government can
mandate health care benefits for workers of non-exempt religious
organizations.
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