As HHS birth control mandate comes into effect, religious freedom flounders

ERIC GAILLARD REUTERS A woman holds a birth control pill. These tiny pills are now at the heart of an … Continued



A woman holds a birth control pill. These tiny pills are now at the heart of an ongoing fight over religious freedom.

The travesty of the Health and Human Services mandate in the Affordable Care Act continues to rankle. The mandate requires employers to underwrite for employees contraceptives, including early abortion-inducing like Ella, and female sterilization through their insurance programs. The law is driving complainants of many religions to court.

Some religious non-profits have a safe harbor and do not have to fund health plans that cover contraceptives and sterilization until after August 2013. For-profit companies, however, are under the gun now. The for-profit business owners who object to the mandate either must violate their consciences and pay for plans that include services they morally oppose or hold to their principles and face backbreaking fines.

The Becket Fund reports that there are 43 cases and over 110 plaintiffs challenging the mandate in court. So far, at least 12 for-profits have obtained initial rulings that take up the merits of their case, and nine of those rulings have granted the companies preliminary injunctive relief against the mandate.

Reasons for the decisions vary. In some instances the court recognizes that the government is likely violating the Religious Freedom Restoration Act, which forbids the federal government from substantially burdening religious exercise, unless it is the least restrictive means of furthering a compelling government interest. One plaintiff suggested that if the government is bent on saturating the nation with contraceptives, it might hand them out for free rather than force churches and others to pay for them.

A Federal Court in Missouri issued a temporary restraining order on December 31 invoking both the First Amendment and RFRA in Sharpe Holdings, Inc. v. United States Department of Health and Human Services. According to the blog Religion Clause, “the court concluded that under the Religious Freedom Restoration Act the mandate and its penalties would substantially burden plaintiffs’ free exercise rights.” It added also that “for 1st Amendment purposes, the mandate is not a neutral law of general applicability.”

Said the court: “[T]he ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees.” It agreed with plaintiffs’ argument that the “mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes. Burdens cannot be selectively imposed only on conduct motivated by religious belief.”

In Michigan, a federal district court held that the property management company, Domino’s Farms Corp., and its owner Thomas Monaghan (founder of Domino’s Pizza) had adequately alleged that the mandate imposes a substantial burden on Monaghan’s Catholic religious beliefs. The court noted that the Supreme Court has held that “’putting substantial pressure on an adherent to modify his behavior and to violate his beliefs’ substantially burdens a person’s exercise of religion.” The district court added that for itself, “the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate…. Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions.”

The court added that the government had not carried its burden under the RFRA showing that it had a compelling interest or used the least restrictive means in burdening plaintiff’s free exercise.

Decisions conflict. The judge in Grote Indus. v.Sebelius in Indiana ruled against the plaintiff and declared that the burden of the mandate is “likely too remote and attenuated to be considered substantial.”

Personally, it is hard to see how forcing someone, against his conscience, to purchase insurance coverage that includes abortion-inducing drugs could not be a substantial burden. In a Chicago courtroom, the Seventh Circuit judges in Korte v. Sebelius got it right when they responded to similar arguments that “the religious liberty violation at issue here is inherent in the coerced coverage of contraception, abortifacients, sterilization, and related services, not-or perhaps more precisely, not only-in the later purchase or use of contraception or related services.”

Simply put, the issue is not about using contraceptives, it is being coerced to offer or purchase a plan that covers them. Clearly courts should not be in the business of telling people –be they businessmen or bishops –what constitutes a substantial burden on their exercise of religion. The few courts that have ruled the wrong way so far have impermissibly delved into a moral analysis of religious claims.

Sister Mary Ann Walsh is Director of Media Relations for the U.S. Conference of Catholic Bishops.

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  • itsthedax

    So Sister, Would you support an employer who decides that his company insurance plan should be based on the teachings and values of the Christian Science religion? What if he is a Jehovah’s Witness – should he be able to opt out of paying for blood transfusions?

  • jfp1

    This issue is one of the strongest arguments FOR SINGLE PAYER INSURANCE COVERAGE. It is unconscionable that an employer – any employer – is permitted to decide the sort of healthcare that employees can access. And, on is looking for a job, it may become more important than ever to check out the health insurance at the first interview!!

    The decisions about healthcare are supposed to be private, confidential, and between a person and his/her physician. Allowing employers to have so much knowledge and control over these supposedly private matters has the potential to violate confidentiality.

    Let’s change the discussion from one of so-called religious freedom to one of figuring out a way to allow people to access the healthcare that they need, rather than what an employer decides is appopriate

  • Joel Hardman

    Let’s call a spade a spade: It’s 2013 and people still think birth control is amoral! How is that possible?!

  • itsthedax

    “Amoral”? Not sure what you mean by that. Did you mean to say “immoral”?

  • Joel Hardman

    Yes, you’re right. Oops.

  • itsthedax

    no prob!

    It isn’t birth control that the religionistas consider to be immoral, it’s sex. The church’s position is that sex is a necessary evil that can be tolerated only for procreation, and only between two people that the church approves, and even then only after they go through the correct rituals to remove the sin. But if anyone uses birth control, the church believes that they are having sex only for fun, which would be sinful, even for an approved married couple.

  • question1

    This is, IMO, a politically made & insurance exploited non-issue. Christian Scientists do not believe in blood transfusions but they purchase run-of-the-mill health policies for their employees that cover these treatments. Why should any other religion be different?

    Our religious beliefs will dictate which medical treatments we choose or refuse. Health Care Insurers allegedly offer treatments based on economic viability & generally accepted efficacy. If I choose a bone-marrow transplant, too bad for me since my insurer considers that “experimental”.

    This is a disgusting, blatantly transparent move by ideologues to force their beliefs on others. And by the insurers who bet heavily on not providing coverage but only accepting premiums – another gimmick to come off as “very serious” rather than “very greedy”.

  • Secular1

    This religious freedom issue is just a red herring, given the fact that there have been many a employer paid insurance plans that violate the religious superstitions of the employerssuch as blood transfusions, organ donations/transplants etc, etc. This birth control is justt a pretext for all the Tea partiers, and GOPers trying to nullify their political losses and the president’s political victory. These are the same people who had in the past ranted against judicial activism and now are inviting it. The conservative troika of Scalia, Alito, & Tonto are just to eager to oblige. These three are unabashed to put aside stare decisis.(even of their own decision) if it would mean they can stick it to the president.

  • RickWatcher

    During the debates on the Amendments to the Constitution in 1789 James Madison wanted to add the following to the 1st Amendment; “and the right of conscience shall not in any manner or on any pretext be in fringed.” It was determined during debate that this was a self evident truth and did not need to be added. Our founders hadn’t counted on godless socialist, communist “progressives” taking over the government and Institutions of higher learning and diseminate their deadly philosophy through out the land.
    Once God is removed from the equation then evil begins to proliferate and before you know it your living in another Socialist Russia or Communist China.

  • jay2drummer

    What exactly do you mean by “once god is removed from the equation”? Last I checked, god, by law, was never part of the equation to begin with. Where is the evil in providing people with medical coverage? Where is the evil in saying an employer’s religious beliefs don’t get to deny an employee necessary medical coverage? Where is the evil in preventing unplanned pregnancies, lowering abortion rates, keeping children from being raised by parents who are neglectful or resentful or not in a position (mentally or financially) suited to raise a child? What about the other things, like PMS-related symptoms, that the pill does? The founders also hadn’t counted on blacks, Catholics, or women taking over government and institutions of higher learning.

  • Catken1

    “”and the right of conscience shall not in any manner or on any pretext be in fringed.” ”

    And that includes the right of conscience of the individual, who has the right not to be coerced via differential compensation to abide by Catholic doctrine requiring them to have more children than they want or can care for.

    Otherwise, you might be subject to the whims of an employer who decides that his or her “conscience” does not support promoting more breeding to damage Mother Earth, and therefore refuses to cover a third or subsequent pregnancy or child for you and your family. And there might be more of these than you think, as pregnancy and coverage for additional children are expensive – businesses might jump at the chance to claim “conscience” and deny you coverage.

    Whereas what you are demanding isn’t going to save anyone money, and will cost all of us – insurers, employers, employed, and society in general – extra for the much greater costs of unplanned and unwanted pregnancies.

  • Catken1

    Of course, though, it’s much easier, and quite fashionable, to whine about how persecuted you are by “godless communists” who have the GALL to support religious freedom for EVERYBODY, rather than allowing you the “freedom” to push your religion on everyone else and allowing everyone else only the “freedom” to obey your rules abjectly and submissively.

  • PhillyJimi1

    There were plenty of things that didn’t make it into the Constitution…Including any reference to any god or gods. Pout about it all you want but unless you can specifically state where the Christian zombie god is mentioned in the Constitution of the US get over it.

  • PhillyJimi1

    I wonder if America would still have slavery, no rights for women and only white land owners could vote if it wasn’t for them darn “progressives”? Really RickWatcher, are you about 80 years old? If so I understand where you’re coming from. I am sorry the age of Archie Bunker is gone and it is never coming back. For someone like you I am sure America was good to you but America needs to be good for All Men (& women).

    If using birth control is something you don’t want to use for whatever reason that is your choice and no one has the right to tell you otherwise. But birth control pills are a valid medicine and must be included under proper modern health care. Just like praying the cancer away for a child isn’t valid medical care.

  • RickWatcher

    The issue here is not medical it is the 1st Amendment and “right of conscience.” Whether it’s an individual or an institution run by individuals. If you don’t like the way people that own or run a business in this issue you don’t have to work for them.
    I personally don’t have a problem with birth control. I do have a problem with killing babies before they are born. I do have a problem with those who are trying to destroy a Constitution that worked for 235 years until the godless came in and started stealthly poisoning our society and now we have gotten to the point where they are trying to destroy the Constitution. The 4th Amendment has already been destroyed. Most of the others are being ignored and the 1st and 2nd are being attacked nationwide and if you can’t see this you have been spiritually blinded to truth.
    Better wake up before it’s too late.

  • jay2drummer

    In what way is this a violation of the first amendment? It doesn’t establish any national religion. It doesn’t prevent anyone from practicing their religion (unless you believe practicing your religion includes forcing others to live by your religious beliefs as well). A person who believes birth control is wrong still has every right to not take it, they just can’t tell anyone else they’re not allowed to take it. The law does take away free speech, the press can write anything they want, and people are not prevented from assembling or petitioning government. So where is the violation of the first Amendment? As for the godless, many of our founders were in fact not at all religious, some even atheists. In fact, our laws were written specifically to be religion-neutral specifically because our country came into existence because people trying to avoid religious persecution left Europe. It has existed (and continues to exist) all these years later specifically BECAUSE our Constitution doesn’t prevent or force any religious beliefs. Never mind that the vast majority of politicians, including Democrats, 100% of presidents, our Supreme Court, an the majority of voters are, themselves, very religious people. It’s just that people have different religious beliefs and our laws make it okay to have those beliefs.

  • leibowde84

    If employers were forced to provide contraception directly to employees, I would agree with this article. However, insurance companies will be forced to provide the option instead. Further, due to the fact that premiums on plans where contraception is provided are substantially less, there is no valid argument in the notion that employers are being forced in any way to act against their conscience. Sure, they might not want their employees to have access to birth control, but they have no right to deprive their employees the option to make this conscious choice for themselves. Insurance companies will be paying directly for the pills and employers will literally save money by adhering to the mandate … thus, I don’t see a problem. It sounds a lot more like religious people and Obama-haters are looking for a chance to get behind something. Problem is, there is no constitutional issue and birth control is good for society (at least according to anyone who has studied the science and sociological aspects of the drug).

    Theological stances and religious ideals regarding morality should never play a part in legislation or the denial of legislation. That, in fact, would be unconstitutional.

  • leibowde84

    In other words, itsthedax, they are nuts.

  • jay2drummer

    This issue is nothing other than a medical one. It’s about medical insurance providers being able to provide doctor prescribed medicine to patients. That’s the definition of a medical issue.

  • Catken1

    ” I do have a problem with killing babies before they are born”

    But no problem whatsoever with retaining your own right to kill any innocent, doe-eyed baby that needs so little as a pint of blood from you after birth, because YOUR right of choice, with respect to YOUR body and its use, is supreme. Hypocrite.

    ” I do have a problem with those who are trying to destroy a Constitution that worked for 235 years until the godless came in and started stealthly poisoning our society ”

    I.e. “WAAAH! They took away my religion’s dominance and stopped letting me tell them what to do, when and how to pray, and how to live! WAAAHH! Those mean godless people are POISONING our society by demanding religious freedom for people who don’t think like I do! ”

    Get a grip. A society where not everyone is forced or pressured to abide by your religious rules is not an oppressive society. And no, you are not abused and oppressed because society acknowledges that other people are entitled to abide by religious rules, or non-religious rules, other than yours, and are entitled not to live by your purely religious rules, too.

  • LabRat1973

    NOT TRUE, because no one is giving these businesses permission to tell their emloyees whether or not they can USE birth control. It would be a violation of privacy laws to even ask. Saying the employer should not be forced to pay for B.C. is not the same as saying they can’t have it. What they do on their own (via Planned Parenthood, etc.) is their own business.

  • jay2drummer

    For many people, saying insurance doesn’t cover it IS SAYING they can’t have it. Not everyone has access to Planned Parenthood, and many people can’t afford supplemental insurance. So for them, if the employer gets to tell insurance companies not to provide it, he is telling the employees they can’t have it.


    Religion is a liberty that a American can practice or not practice. No person can force a religion belief on another. All business must comply with all civil laws which must meet the conditions of our supreme law,the Constitution. No person can be forced to have a business. Religion is not a business but can be subjected to be taxed by the government.


    Rick, religion is a liberty that a person can practice or not practice. No person can force their religious beliefs on another. Tomas Jefferson spoke correctly on religions.

  • longjohns

    Suppose you said you don’t want to pay to educate your kids in doing sports in school when 60% of the other parents want to. Should you be able to withdraw financial support? Maybe. Certainly a matter for discussion but it sure isn’t any right of yours to automatically assume that you can stop paying property taxes some of which is earmarked for sports in schools. Your argument is not based on a secular political system where we agreed to obey by majority rule. Yours is one based on some ideals regarding pregnancy that you believe in. In the Judeo/christian/muslim religion, G_d also clearly spelled out that young people who engage in pre-marital sex should be stoned to death. Maybe you should promote that.

  • longjohns

    Oh. One more thing. That Good Book also forbid woman from leading in church. Why are you disobeying? Or maybe you can write a piece about which part of the Good Book you think we should disregard and which part we should adhere to and why.

  • hedgehog6

    To LabRat1973: In fact employers would be asserting their religious values for a legal benefit of standard health insurance. As for Planned Parenthood (and similar programs), if you live in Texas that might not work so well. If the employer doesn’t want to provide health insurance, that is their business and they can deal with any general legal consequences. But there is good reason to avoid the application of singular, conservative theological doctrine to the dispensation of a recongized, standard, legal benefit.

  • Catken1

    Maybe we could solve this problem by moving to a single-payer system? That way, it wouldn’t be the employer’s decisions affecting what the employee can buy – and we’d also deal with the fact that having health insurance tied to employment means that if you get too sick to work, you also lose the insurance that might have helped you get back on your feet again.

  • persiflage

    Jesus is a myth – according to Pope Leo the 10th – ‘ the myth of Christ have been very good for us’.



    Sister Mary Ann, And what argument does the RCC come up with nations that have these items in their public health insurance like the U.K.? P.S. As a nun, tell us soon your views of the Vatican’s attack on the good American nuns that the American people like and or respect.

  • richweez

    This is about employment law, plain and simple. If you are a religious institution that employees people of any or no religion, such as in a hospital, they you are subject to the same employment laws as everyone else.

    If you are a religious institution and don’t want to comply with the law, then give up your tax-free status. Plain and simple.