Women's Access to Contraception Does Not Violate Employers' Religious Freedom

There’s been a lot of talk recently about contraception. Mostly it has been about the fact that under the Obama healthcare reform, religious employers are required to provide their employees with health insurance that will provide contraception directly to the employee at no cost. The conversation has revolved around religious freedom and government intervention with the freedom of conscience of the employers. When the House Oversight and Government Reform Committee held a hearing on the issue of contraception on February 16, it heard from two panels of witnesses. Out of 10 witnesses in all, one holds a medical degree; all are clergy or work for religious educational institutions. Of these, two are women. So it would seem the best method to inform our elected officials about the proper availability of contraceptives to the public is to hear from middle-aged men who specialize in religion, not medicine. But this is not about men, middle-aged or otherwise. The availability of oral contraception is about women and their health. Let us put aside for a moment the fact that the hearing was so one-sided that House Democrats walked out in protest. Let us, instead, focus on the simple fact that decisions about women’s health, decisions about whether and when we bear children, decisions that influence the entire trajectory of a woman’s life, are made without consideration of the central elements in any of these: a woman’s perspective and the medical implications that result from taking or not taking oral contraceptives.

Oral contraceptives, known as birth control pills, are basically small doses of hormones that, when taken on a daily basis, prevent a woman’s body from releasing an egg into the fallopian tube, thus preventing a pregnancy from beginning. That means that when birth control pills work, which is over 99% of the time, conception never takes place. This is a small but crucial fact that differentiates the contraceptive debate from the abortion debate.

The most oft-repeated line of the “pro-life” movement is that abortion should be illegal because life begins at conception, and therefore abortion is homicide – it is the ending of an existing life. This argument may not be persuasive, and it may entirely ignore serious questions of a woman’s control over her body and her right not to serve as an incubator, but at least it has a grain of something that society as a whole agrees on – killing is, generally, wrong. But the recent tempest surrounding the issue of access to oral contraceptives reveals that the “pro-life” movement is really an anti-choice movement. Once we understand that there is no life that needs protecting other than that of the woman who is using the pills, this is truly about preventing women from exercising control over their own bodies, even when those are the only bodies involved. What is behind this frenzy is ostensibly a religious conviction – God, according to the Judeo-Christian tradition, commanded us humans to go forth and multiply. So giving women the choice of having a sex life and not getting pregnant interferes with God’s plan, and we can’t have that.

This is not only completely hypocritical—after all, condoms are readily available at your local drugstore and/or vending machine, and health insurance plans cover vasectomies—it is also blind to the full range of uses of oral contraceptives. Birth control pills are, after all, nothing more than hormones. And hormones do a lot more than regulate pregnancy. Women of all ages use oral contraceptives regardless of whether they are sexually active in order to help manage various conditions, including highly irregular menstrual cycles, controlling excess facial hair, acne, bone thinning, and breast and ovarian cysts, among others. To these girls and women, oral contraception is medication.  Denying women access to contraception is not just a method of creating more unplanned pregnancies; it is a method of ensuring that women who depend on it for their health are repeatedly humiliated as they try to get access to their medication, having to get special exemptions from their health insurance providers or paying upwards of $50 a month for it.

Imagine a young coed walking into her neighborhood pharmacy to pick up oral contraceptives. She uses the medication not for purposes of birth control but as part of the treatment of a fairly common hormonal disorder which impacts her appearance, as well as the regularity of her menstrual cycle. Ironically enough, she takes the pill so that someday, when she is ready, she can conceive without excruciating difficulty. When she goes to pay for the prescription, she is told that her insurer does not cover the medication – she can pay out of pocket and take the pills home, or she can call her insurance company and try to get them to cover the prescription because she uses it not for contraception but for “legitimate medical reasons.” She spends the next few days on the phone with the health insurance company, running back and forth to the doctor, trying to gather the proof required to bring the contraceptive under her plan coverage. Eventually, she gives up and pays the full cost of the pills out of pocket. To avoid further humiliation, she stops trying to get the insurer to cover her medication and pays the full price every month. Before recent reforms to the healthcare market, this was not uncommon.

Let us assume, however, that religion really is the impetus for all of this. Let us assume that what an employee does with her own body with oral contraceptives that she receives directly from the health insurance company, a workaround that was created precisely to protect the religious freedom of employers, somehow concerns the free exercise of the employers’ religion. Under the current standard for free exercise cases, that doesn’t really matter. Under the Supreme Court’s current Free Exercise jurisprudence, most definitively laid out in Employment Division v. Smith (1990), religiously-motivated claims do not merit special exemptions from a facially neutral law with a valid, non-discriminatory purpose. In this case, we are faced with neither facial discrimination nor an invidious purpose. The regulation applies to all employers, without exception, and it is not directed at the exercise of religion. This regulation allows each person to follow the precepts of his or her religion within the confines of one’s home and body – and protects those of us who choose to follow different precepts than those of religious Conservatives.

Denying women the same access to oral contraceptives as they have to any other prescription medication is denying women access to an integral health care service. Reproductive freedom is women’s health, and women’s health concerns us all.

Latest comments
  • The fact that the House hearings were so one-sided is a travesty. It makes me wonder if there is any way other than the voting booth (an increasingly futile tool of change) to hold Representatives accountable for spending taxpayer money to hold hearings that are clearly not designed to encourage fair consideration of the issue. The only reason there were eventually two women who testified was that the uproar was so loud when the first panel of five was all men.

    Rush Limbaugh’s comments over the past couple of days about Sandra Fluke (though he misstated her name), the Georgetown Law student who testified, are evidence of the kind of pervasive ignorance about how oral contraceptives work and the various reasons for which they are used. In addition to calling Fluke a prostitute because she believes that it is reasonable to require insurance to cover oral contraceptives, Limbaugh went on the say that if the taxpayers are paying for it, we should get something for it, and she should post videos of her sex life on the internet. Caveman.

    A couple of small notes of disagreement: first, the health care regulation as originally conceived and under the newer compromise version does not apply to all employers. It specifically exempts specifically religious institutions (as in churches, synagogues, mosques, not hospitals, schools, etc). The new compromise allows religiously affiliated employers to decline to pay for the coverage, but requires insurers to provide it at no cost (a distinction without a difference from the employees point of view).

    Also, Employment Division v. Smith says that there is no requirement for religious exemption to an otherwise neutral law (a weak Free Exercise clause). It doesn’t say that the government can’t provide one if it chooses, so long as it doesn’t single out a particular religion (a weak Establishment Clause). The result is that politically powerful religions (Catholics in this case) often get their exemptions legislatively, while less powerful ones (Native Americans in Smith) are left without judicial protection. I don’t think the argument being made right now is a doctrinal one; it’s purely political.

    Overall, I think you’re absolutely right that the conclusion to be drawn is that many people who claim to be pro-life are in fact anti-choice. Generally, I think the Catholic Church is more pro-life in a literal sense than many non-Catholic conservatives because it is also against the death penalty and war. Those who argue against readily available contraception are getting behind a position that it is rooted an understanding of the female role as that of mother first, and seeks to deny women the ability to choose when, if at all, they want to take on that role. It is completely incompatible in my view to be anti-contraception and anti-abortion. Many of those speaking out against this are also quick to villainize single-motherhood and poor parents with large families. The outcome is the choice becomes a luxury of the rich because the male powers-that-be decided it violated their conscience.

  • I agree with your analysis and with Noah’s comments. I would also add that the contraceptives policy under the ACA almost certainly passes the higher scrutiny which might be necessary under the Religious Freedom Restoration Act. As the supporting documentation for the legislation and the HHS regulations makes clear, the government has a “compelling interest” in expanding coverage and controlling coverage, and contraceptives coverage significantly advances that interest because of the demonstrated health benefits and long-term cost-cutting effects of access to contraceptives.


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