HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Tuesday, September 4, 2012

Preventive Health Services and the "War on Religion"

Last week, I participated in a discussion with Professor Ken Klukowski of Liberty University School of Law about the Department of Health and Human Services' (HHS) proposed regulation requiring almost all employers who offer health insurance to their employees to include coverage for prescription contraception. This regulation is based on recommendations from the Health Resources and Services Administration (HRSA) to include all FDA-approved prescription contraceptive methods and sterilization procedures in the list of preventive health services that must be covered without cost-sharing under the Affordable Care Act. It has been a lightning-rod of controversy, mostly because it contains only a narrow exception that would apply only to churches and other houses of worship, as opposed to other religiously affiliated organizations, such as colleges, hospitals, and schools. A number of religiously affiliated organizations, as well as for-profit secular corporations owned by people whose faith prohibits the use of contraception, have sued HHS, claiming that the proposed regulation violates their free exercise rights under the First Amendment, as well as violating various federal statutes. Prof. Klukowski argues that this regulation constitutes an infraction of religious liberty, and amounts to nothing less than a "war" on religion, because the religious exception is so narrow. I argued that requiring a broader exception is not constitutionally required, and in any event, would constitute bad policy and lead to greater government intrusion into religion.

There is no question that reasonable people (and a lot of unreasonable people) can disagree about the scope and meaning of the religion clauses of the First Amendment. This regulation raises a serious issue that requires a thoughtful legal analysis (although I think the thoughtful legal analysis has already been done by the U.S. Supreme Court in United States v. Lee, and the highest courts of New York and California in two cases brought by Catholic institutions in those states challenging similar state-law mandates). But I think it is most interesting that the same people who purport to be "originalists" with regard to the interpretation of the Constitution are quick to assume that the Founders intended corporations, even for-profit corporations, to have religious exercise rights. In fact, there is no evidence that the Founders ever thought that anything other than a natural person or a house of worship would have such rights. Religious corporations of the type that exist today were totally unknown in those times. In addition, opponents of the regulation seem not to be concerned about the courts intruding into the sincerity and strength of a corporation's or its owners' religious beliefs, in order to determine whether a corporation is sufficiently religious to take advantage of an exception to an otherwise-applicable regulation. Such an intrusion would constitute a clear violation of the Establishment Clause. Do we really want the government deciding whether we are religious enough to warrant certain treatment? If I am a Jew, and I keep the Sabbath according to strict Jewish tradition but don't eat kosher when I eat out, am I religious enough to warrant the exception? As a person of faith, I can tell you, that I don't want my government to go there.

Furthermore, it should not shock anybody that people will use religion to gain profits or enhance their position with regard to their secular competitors. If praying every day will save me several thousand dollars in yearly business costs, what am I likely to do, even if I truly believe that religion is a bunch of hogwash? And what about the inevitable balkanization of employment that would come about from a rule that exempts anybody and everybody who claims a religious belief from complying with an otherwise constitutional rule of general application? If I need or think I may need mental health care, I'd better not work for a Scientologist; if I think I may need birth control, I'd better not work for an HVAC company owned by a Catholic. Instead of employers asking questions to potential employees about their religious beliefs, it will be employees asking employers about their religious beliefs. Do we really want this? Will this be good for the economy? Will this breed still more litigation?

The real "war on religion" will begin when the courts intrude into my life to determine whether my religious beliefs are sincere enough to warrant special treatment, and my secular competitors get fed up enough with the unlevel playing field that broad religious exemptions will engender. Then they will exercise their power at the ballot box to throw out the lawmakers who are actually sensitive to religious liberty and nuanced enough to understand the competing concerns that must be accommodated in our nation of many, and no, faiths. After all, we all know that most people will vote their pocketbooks before anything else.


Cross-Posted on Healthy Interests

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