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Supreme Court to Decide Obamacare Contraceptive-Abortifacient Mandate

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contraceptive-mandateThe Supreme Court has agreed to hear a pair of cases that challenge the HHS mandate requiring many private companies to insure contraceptive and abortifacients. The Obama administration asked the high court to review the issue after a federal appeals court in Colorado found in favor of Hobby Lobby, an Oklahoma-based crafts franchise. The court will combine the Hobby Lobby case with lesser-known case involving Conestoga, a Pennsylvania company that lost earlier bids for relief from the mandate.

If you haven’t been following the controversy, here’s what you need to know about the mandate:

What is this contraception mandate everyone keeps talking about?

As part of the universal health insurance reform passed in 2010 (often referred to as “Obamacare”), all group health plans must now provide—at no cost to the recipient—certain “preventive services.” The list of services includes sterilization, contraceptives, and abortifacient drugs.

If this mandate is from 2010, why are we talking about it in 2013?

On January 20, 2012, the Obama Administration announced that that it would not expand the exemption for this mandate to include religious schools, colleges, hospitals, and charitable service organizations. Instead, the Administration merely extended the deadline for religious groups who do not already fall within the existing narrow exemption so that they will have one more year to comply or drop health care insurance coverage for their employees altogether and incur a hefty fine

Is there a religious exemption from the mandate? If so, who qualifies for the exemption?

According to the Becket Fund for Religious Liberty, there is a “religious employer” exemption from the mandate, but it is extremely narrow and will, in practice, cover very few religious employers. The exemption may cover certain churches and religious orders that inculcate religious values “as [their] purpose” and which primarily employ and serve those who share their faith.

Many religious organizations—including hospitals, charitable service organizations, and schools—cannot meet this definition. They will be forced to choose between covering drugs and services contrary to their religious beliefs or cease to offer health plans to their employees and incur substantial fines.

“Not even Jesus’ ministry would qualify for this exemption,” they note, “because He fed, healed, served, and taught non-Christians.”

Doesn’t the mandate only apply to religious organizations that receive federal funding?

No. The mandate applies to religious employers even if they receive no federal funding.

When did the government begin requiring employer-insurance programs to pay for contraceptives?

According to the Becket Fund, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP).

After FEHBP—the largest employer-insurance benefits program in the country—set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.

Why is the federal government dictating that contraceptives should be covered by insurance?

In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was added by Congress in 1978 in response to a Supreme Court decision holding that an employer’s selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.

As the Beckett Fund notes, “Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives.” The federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate.

But what about the First Amendment protections? Isn’t such a requirement inherently unconstitutional?

In Employment Division v. Smith, the Supreme Court announced that the First Amendment’s free exercise clause “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability,'” simply because “the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” According to the Becket Fund this means that the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a religious institution does not necessarily make the law unconstitutional

Isn’t this just a Catholic issue?

No. Although the Catholic Church has been the most vocal opponent of the mandate, many Protestant, Jewish, and Muslims also oppose the mandate. In fact, several evangelical leaders have called on evangelicals to stand with Catholics in civil disobedience to this law. Additionally, 300 academics and religious leaders signed a statement by the Beckett Fund explaining why the mandate is“unacceptable.” 

What is the Catholic Church’s position on contraception?

The Catholic Church has always opposed contraception. In response to the then newly invented birth control pill, Pope Paul VI issued the encyclical letter Humanae Vitae (“Human Life”), which reemphasizes the Catholic Church’s teaching that it is always intrinsically wrong to use contraception to prevent new human beings from coming into existence.

What is the mainline Protestant and Evangelical position on contraception?

As on most issues related to the faith, opinions among Protestant denominations vary.

Historically, the church has viewed contraception as evil. The Church Fathers and early Reformers were consistent in their opposition to birth control. Martin Luther said that contraception was “far more atrocious than incest or adultery” and John Calvin considered it “doubly monstrous” because it “extinguish[es] the hope of the race” and acts “to kill before he is born the hoped-for offspring.”

Most Protestant denominations shared this view until the 1930s. However today, few denominations—whether Mainline or Evangelical—actively oppose the practice.

I don’t oppose contraceptives, so why should I care about this issue?

There are two reasons that all Christians, regardless of their view on contraceptives, should be concerned about this mandate.

The first is because it forces Christians to pay for abortion-inducing drugs. The policy currently requires coverage of Ulipristal (“Ella”), which is chemically similar to the abortion drug RU-486 (mifepristone) and has the same effect (to prevent embryos from being implanted or, if already implanted, to die from lack of nutrition). Additionally, RU-486 is also being tested for possible use as an “emergency contraceptive.” If the FDA approves it for that purpose, it will automatically be included under the mandate.

The second is that it restricts religious liberty by forcing religious institutions to pay for contraceptives and abortifacients even if the employer has a religious or moral objection to such practices.

Okay, while it may be a pro-life concern, it isn’t a religious liberty issue for me since I support the use of contraception, right?

If the mandate is allowed to stand it will set a precedent that the government can not only force citizens to violate their most deeply held beliefs but that we can be sanctioned for refusing to do so.

As John Leo notes, today it is contraceptives and abortifacients, but “down the road it will be about suicide pills, genetic engineering, abortion and mandatory abortion training, transgender operations, and a whole new series of morally problematic procedures about to come over the horizon.”

Indeed, as Leo notes in his column, a Catholic-run California hospital was sued because it refused to perform breast-enlargement surgery on a transgendered patient. The state court ruled the hospital had violated  the state’s anti-discrimination laws. (Caving under litigation, the hospital paid $200,000 to the transgendered man.)

Didn’t the Obama administration offer a compromise? What was that about?

In response to the concerns of religious organizations, Obama offered a “compromise” in which he proposed that insurance companies, instead of religious institutions, be required to cover procedures and products that they find objectionable at no cost in their insurance policies. In other words, the insurer would be required to provide the services “free of charge” and pay for them out of their own pocket.

What’s wrong with that compromise plan?

As economist Steve Landsburg explains, the proposed compromise does not really change the fact that the religious employers are still being forced to pay for the contraceptives-abortifacients:

[A]ll economists (and I hope everyone who’s successfully completed a Principles course) understands that transferring the responsibility from employers to insurers amounts to transferring the cost from insurance buyers to insurance buyers, which is to say that it’s not a change in policy. One of the first and most important lessons we teach our students is well summarized by a slogan: “The economic burden of a tax is independent of the legal burden”. Ditto for a mandated insurance purchase. It is not the law, but the underlying price-sensitivities of buyers and sellers, that determines where the burden ultimately falls.

Your president knows this. He’s banking that you don’t.

Joe Carter Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).


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  • FluffMuff

    All I can say is that it is indeed gender discrimination based on religious belief; you talk about Christians and I am one. However, what if this were not about the bible, but about another religion imposing beliefs hostile to Christian beliefs or whatever? If this case is upheld indeed you will see this happen. THAT is the problem; employers cannot choose for their diverse employees and these corporations are not religious employers…..simply because the CEO has certain beliefs? What if a company changes hands and is now owned by 7th Day Adventists who do not believe in blood transfusions? We as a country were founded on freedom of religion, these folks can think, say and worship as they wish; they do not have the right to deny their employees access to contraception. In addition, there is a flaw a big one in the description of the morning after pill-it prevents pregnancy, has NO effect if you happened to be pregnant, and is taken within a day or so of unprotected sex. No, women aren’t wanton, but accidents happen even in marriage.

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  • Don

    I am a Christian Scientist who employs dozens of employees of many different faiths. Since I believe exclusively in faith-healing, I am hoping the Supreme Court will rule in favor of the Catholics so I will not have to provide any insurance that covers evil modern medicine to my employees. Thusly, for sticking to my deeply-held beliefs I will save a bunch of cash as a bonus. Praise Jesus.

  • Brian William

    There are conflicting rights at play here.

    The individuals working for a corporation have freedom of religion rights, under the U.S. Constitution. And they can’t be forced to give up those rights as a condition for working for the corporation. The corporation doesn’t have freedom of religion rights, and the CEO, board, etc. certainly can’t impose their religious beliefs on their workers.

    Yet that’s exactly what Hobby Lobby is attempting to do. You’re okay with it because you happen to agree with the CEO, but Fluff is exactly right — you’d be up in arms if it were a Jewish CEO trying to enforce kosher rules on their workers or a Muslim CEO trying to impose the dictates of Islam on their workers. Or to take it to its ridiculous (but logical) conclusion, if a CEO who believed in voodoo told their workers they could only go to a witch doctor instead of a real hospital…

    That’s exactly why the freedom of religion applies to individuals, not to corporations. The individuals have the right to use or not use any portion of their health insurance they don’t believe in, but the corporations don’t have the right to dictate to individuals what they’re allowed to do.

    • Greg

      Brian, you and Fluff are using some seriously flawed reasoning. An employer who is a 7th Day Adventist cannot forcibly prevent their employee from getting a blood transfusion, but neither can or should they be forced to pay for it. If someone works for a Catholic employer, that Catholic employer can’t prevent the employee from spending money they made working for the employer to purchase contraceptives–and in many cases that is and has been going on for years.

      These employees already have the freedom to purchase contraceptives. What is at stake is whether a person can force another to pay for something they already have the ability to obtain on their own. If we now live in a country where that can be done, we’re headed back toward slavery.

      When she claims, “they do not have the right to deny their employees access to contraception,” Fluffmuff is either deliberately distorting the Catholic position, or is guilty of having fluff for brains.

  • DougIndeap

    The question whether corporations ought to be
    treated as individuals with a right to religious liberty has grabbed
    attention, but a preliminary question is whether the health care law
    actually forces employers—corporate or not–to act contrary to their

    Employers may comply with the law by choosing either
    of two options: (1) provide qualifying health insurance plans or (2)
    do not provide such plans and instead pay assessments to the government.
    Unless one supposes that the employers’ religions forbid payments of
    money to the government, the law does not compel them to act contrary to
    their beliefs. Problem solved.

    Some nonetheless have continued
    clamoring for an exemption from the law, complaining that by paying
    assessments to the government they would indirectly be paying for the
    very things they opposed. They seemingly missed that that is not a
    moral dilemma justifying an exemption to avoid being forced to act
    contrary to one’s beliefs, but rather is a gripe common to many
    taxpayers–who don’t much like paying taxes and who object to this or
    that action the government may take with the benefit of “their” tax
    dollars. Should each of us be exempted from paying our taxes so we
    aren’t thereby “forced” to pay for making war, providing health care,
    teaching evolution, or whatever else each of us may consider wrong or
    even immoral?

    In any event, those complaining made enough of a
    stink that the government relented and announced that religious
    employers would be free to provide health plans with provisions to their
    liking (yay!) and not be required to pay the assessments otherwise
    required (yay!). Problem solved–again, even more.

    some continue to complain, fretting that somehow the services they
    dislike will get paid for and somehow they will be complicit in that.
    They argue that if insurers or employees pay for such services, those
    costs will somehow, someday be passed on to the employers in the form of
    demands for higher insurance premiums or higher wages. They evidently
    believe that when they spend a dollar and it thus becomes the property
    of others, they nonetheless should have some say in how others later
    spend that dollar. One can only wonder how it would work if all of us
    could tag “our” dollars this way and control their subsequent use.

    commentary on the various options of employers, the National Catholic
    Bioethics Center acknowledges, albeit grudgingly, that the option of not
    providing health insurance and instead paying assessments is “morally
    sound.” While also considering this option “unfortunate” in that the
    insurance employees would find on their own would include coverage the
    Center deems objectionable, the Center concludes that the employers’
    “moral connection” to that coverage would be “remote.”

    line: Notwithstanding all the arm waving about religious liberty,
    employers are not forced by the law to act contrary to their
    consciences. Rather, the law affords complaining employers the option
    of not providing such insurance and paying assessments instead.
    Employers seeking exemption from the law aim not for religious liberty
    for themselves (they already have that), but rather for power over their
    employees, enabling them to limit their employees’ choices to those
    conforming to the employers’ religious beliefs.

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