The courts, birth control and phony claims of ‘religious liberty’

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

A woman holds a birth control pill. These tiny pills are now at the heart of an ongoing fight over religious freedom. (Eric Gaillard/REUTERS)

Should your boss be able to determine which prescription medications you take at home? Should your boss have a say in how many children you have?

Most Americans would answer a resounding “No!” to these questions. Yet if current political and legal trends continue, more and more Americans may find that their health care hinges not on what their doctors think is best for them but what their bosses believe about religion.

This curious state of affairs stems from a deliberate attempt to redefine religious freedom in America. You read that right religious liberty. A freedom that has historically been interpreted as an individual right of self-determination is being twisted into a means of controlling others and meddling in their most personal affairs. For the sake of true freedom, this must be stopped.

The Affordable Care Act mandates that certain basic services and features must be offered in employee health-care plans. Birth control is among these. Houses of worship and similar ministries are exempt from the mandate, and religiously affiliated entities (hospitals, colleges and social service groups) have been accommodated in other ways.

This is not enough for some ultra-conservative religious leaders who oppose birth control. They are insisting that any business owner should be able to deny his or her employees access to birth control no matter what the nature of the business.

At the behest of the Catholic bishops and their fundamentalist Christian allies, far-right legal groups have filed a slew of cases insisting that secular corporations and other employers have a right according to the principle of religious freedom to deny contraceptive coverage to the men and women who work for them. Among those waging this crusade are the Becket Fund for Religious Liberty, TV evangelist Pat Robertson’s American Center for Law and Justice and the Alliance Defending Freedom, an organization founded by radio and TV preachers.

Several of these cases have bubbled up to the federal appeals courts. The U.S. Court of Appeals for the 7th Circuit heard arguments in one case on Wednesday involving two firms, K&L Contractors and Grote Industries, and the following day the appeals court for the 10th Circuit heard a challenge brought by Hobby Lobby, a chain of craft stores.

These are all secular firms. K&L is a construction company, Grote makes auto-related products, and Hobby Lobby is in the retail business, hawking items such as pink flamingo wind chimes and 3-D garden gnome stickers. In each case, their owners personally oppose some forms of birth control.

Since these firms concede that they’re not religious institutions, the only question is whether the evangelical Christian and Catholic owners of the companies have the right to ignore a federal law that they disagree with on religious grounds — in this case, a law mandating birth control coverage in health-insurance plans.

They do not. The principle of religious liberty protects your right to make moral decisions for yourself, not others. Obviously, a law that required Hobby Lobby’s owners to use birth control would be a gross violation of their religious liberty. But the mandate doesn’t do that. It merely requires that the 22,000 employees of Hobby Lobby be given the right, if they choose, to access birth control through a health-insurance plan.

Nor can Hobby Lobby’s owners plausibly argue that their rights are violated because they must pay for these health-care plans. The fact is, if we allowed everyone to opt out of paying for everything they object to on moral grounds, society would quickly grind to a halt.

Fundamentalist Christians might refuse to pay for a public school system that teaches evolution. Conservative Muslims might refuse to pay for public museums that may contain art that offends them. More to the point, a boss who believes in spiritual healing might refuse to provide medical coverage at all, arguing that only God, not a doctor, can make you well.

In fact, if a company can refuse to cover your insurance costs for what it considers an “immoral” practice, what’s to stop it from simply refusing to hire anyone who might buy contraceptives with cash from a paycheck?

Under the First Amendment, you are shielded from being forced to pay for someone else’s religion. But nothing in the Constitution protects you from paying for things you just happen to object to on moral grounds. In a country as politically splintered as ours, such a la carte taxation would make it virtually impossible to get anything done.

This issue is also important from a medical perspective. Americans use birth control for many reasons — not just to limit births. Some women need birth control pills to manage serious issues such as endometriosis. Americans value their medical privacy. No one should be forced to go to their boss begging for medication they need to treat a serious condition. Religious freedom is not a license to meddle in someone else’s health issues.

The appeals court rulings in these cases are unlikely to be the last word. This issue is so important there’s a good chance it will land before the Supreme Court. If it does, the court should take the opportunity to make one thing very clear: As precious as it may be, religious freedom gives you no right to make moral or medical decisions for others.

Barry W. Lynn is executive director of Americans United for Separation of Church and State in Washington, D.C.

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  • rockyboy1

    Could we correct a misnomer and call it contraception instead of “birth control?!” “Birth control” just plays right into the hands of these nutcase control freaks.

  • whatareyouthinking?

    Two big flaws to this argument…
    1. He says that no “business owner should be able to deny his or her employees access to birth control no matter what the nature of the business”. The simple FACT of the matter is they are in no way trying to. They just simply do not want anyone FORCING them to have to pay for something that is contrary to their beliefs. There are many of birth-control options out there and everyone is free to purchase on their own. There is nothing prohibiting them from doing so. I am not as the author assumes “Ultra-Conservative” yet I would never expect my employer to pay for this. This is personal responsibility.
    2. This has not been an issue up until now. The more concerning issue should be how many things are being FORCED on-to the American people lately. Example: You will be FORCED to purchase health insurance or face penalties. People who have opted to pay outright for their services will be fined. If Democrats get their way we will all be FORCED to subsidize abortions soon and that is simply wrong!

  • whatareyouthinking?

    This is just a really poor Straw Man argument. You are comparing companies being FORCED to pay for birth control to this couple’s unbelievably bad decision. You can go out and purchase birth control anywhere. Nothing stops you from doing this. The last time I checked you had the freedom to choose where you work as well (for now at least). Seems to me that if you don’t like the policy your company offers you are free to work for someone else. This policy is just one step closer to FORCING American citizens to pay for abortions.

  • Catken1

    And you are privileging the religious beliefs of those who want to pressure their employees not to use birth control over those who want to pressure their employees to use prayer rather than medication for their kids. If these people were employers, why couldn’t they tell their employees, “You can purchase secular medical care for your kids yourself, after paying with your contributions and labor for the health insurance we provide, which only provides you with a minister to pray with you. Normally, you’d get medical care when you pay for health insurance, but because our religion objects to providing secular medical care, you have to pay twice, sorry.”? What would be different in that from, “You can purchase birth control yourself, after paying with your contributions and labor for the second-class health insurance we provide, which won’t cover it, but costs more (because unplanned pregnancies cost insurance companies more than birth control). Normally, you’d get the medications you need when you pay for health insurance, but because our religion objects to some medications, you have to pay twice for them”?

    Answer: One is a religious belief you approve of, one is a religious belief you don’t. So it’s OK for employers to dictate to employees that they may not use the compensation THEY EARN to follow their own beliefs, rather than their employers’, in one case, but not in the other.

    And no, it’s not so easy to choose where you work these days, and no, we still should not allow employers to dictate to employees what they may or may not get for their EARNED COMPENSATION. Employers have the ability to set pay rates up to a point, but they shouldn’t have the right to tell you what you can get for what you spend of the money they pay you, whether it be in salary or insurance.

  • Catken1

    ” He says that no “business owner should be able to deny his or her employees access to birth control no matter what the nature of the business”. The simple FACT of the matter is they are in no way trying to. They just simply do not want anyone FORCING them to have to pay for something that is contrary to their beliefs. ”

    But they aren’t paying. The employee EARNS their health insurance, paying for it partially with contributions and partly through labor. Yes, they can buy birth control on their own – they can pay twice, once for health insurance that ought to and generally does cover needed medications, and then pay additionally for medication that OUGHT to be covered by their insurance. Especially offensive, given that health insurance without contraception is MORE expensive for everyone than that with, due to the high cost of unplanned pregnancies. But their employer should not be entitled to force them to do so, just because the employer objects to the medications they use.

    If your employer says, “Well, I object to you using the money I pay you to buy pork. I expect you to provide me with all grocery and restaurant receipts so that I can dock your pay for every purchase of pork, so that I don’t have MY salary money going for items I find offensive. You can take personal responsibility for offending God by eating pork, but you can’t compel me to pay for it – buy it with your own money, i.e. money you earn somewhere else, working for someone else,” would that be OK with you? It’s no different. You earn your health insurance just as you earn salary.

    And woe, woe, you’re FORCED to pay for health insurance, instead of bleeding the community dry to pay for your illnesses and injuries when you can’t (because the vast majority of us can’t pay for medical emergencies without insurance, and must depend on charity if we have none).

  • whatareyouthinking?

    I’m sorry but you truly do sound like someone caught up in a victim-mentality.
    I’m not sure where to start on this…
    Are you saying that the company that you work for that is offering a health insurance policy is not paying a portion of it? That they should not be allowed to choose what types of insurance they offer? Your position in a company should be creating a profit for the company. That is the reason that you are there. They in turn are using the profit generated by the company to pay a portion of your health insurance. They should absolutely be allowed to determine what type of health insurance they offer. You can leave for a different company at any time if you are not happy with it. In fact, you could go stat your own company and offer this insurance to your employees. This in and of itself leaves your Pork argument severely lacking. Go work for someone that is more aligned with your priorities. It’s a FREE COUNTRY!!
    In addition I’m not sure why you are so offended. My wife’s insurance (that we pay for outright) does not cover birth control and we are not offended by this. Scientists have recently revealed what causes pregnancy (Sarcasm intended) so we do not feel entitled to someone else providing this prevention.

  • whatareyouthinking?

    You have to understand something. I do not have a religious belief that opposes birth control. I could care less. I simply feel the need to stand up against people who feel entitled and want to force others to do what they want them to do. I do not see these folks as people trying to “pressure their employees not to use birth control”. They just don’t want others to pressure them to go against their beliefs.
    I also call bologna on “it’s not so easy to choose where you work these days”. It’s never been easier to choose where you want to work. If you don’t like the BENIFITS offered, go somewhere else.

  • Catken1

    ” I simply feel the need to stand up against people who feel entitled and want to force others to do what they want them to do”

    So why is it OK for an employer to dictate what an employee may do with the compensation that employee earns?

    ” It’s never been easier to choose where you want to work”

    Yeah, right. Must be nice in your world. The rest of us in the real world see the economy suffering, and lots of qualified and intelligent people out of a job.

    Even if it were, though, your employer still ought not to have a say in what you do with compensation you EARN, nor the right to make you pay twice for needed medical coverage because they object to it.

  • Catken1

    And why, then, wouldn’t you be willing to stand up against people who feel entitled to force employers like these guys to provide health insurance that covers basic health care to their employees, instead of requiring them to contribute to an “insurance” plan that covers nothing but prayer? If it’s OK for an employer to dictate that an employee may not have access to a health insurance plan that covers contraception (and since insurance is prohibitively expensive outside of employment, that is effectively what they do), then it should be OK for an employer to dictate that an employee may not have access to health insurance that covers any medical care whatsoever for their kids. If it’s OK for an employer to object to “their money” – the compensation their employees EARN – being used for birth control, why isn’t it equally OK for an employer to object to “their money” being used to provide secular medical care for the employee’s kids?

    Why should these people have been forced to go against their beliefs to pay for health care that violated those beliefs for their kids? Why should their kids’ lives and health take precedence over their beliefs, which are made Extra Speshul by being labeled “religious,” when a woman’s life and health does not, in your world, take precedence over her employer’s religious belief that states that she is either celibate or a baby-making machine with no right to say no to making as many babies as her body can before it dies of exhaustion?

  • nkri401

    I’m thinking I’ll pay my employees about $3.00/hr like my Chinese employs overseas. My employees can apply for food stamp if they need to eat and ask for section 8 housing if they can’t mooch of their ailing parents. Yea, that would double my profit margin. All is fair in war and market place.

    So, who wants to offer $2.95? Going once, twice….

  • richdys49

    First off the health care the company I work for provides me is in exchange for my productivity. It is not their money. It is my money I have earned it and I should be able to use it to buy the health care services I need based on my moral values not my employers. What next a Jehovahs Witness Moral Objection to Christmas means I cannot buy Christmas Gifts with my paycheck. If you do not want to pay for health care benefits for your employees than do not use their productivity to promote your own enterprise and earn a profit on your behalf.

  • Catken1

    Do you not think that the employer who is offering you a salary is not paying for it? Should they not be allowed to choose what you may buy with that salary?

    ” Scientists have recently revealed what causes pregnancy (Sarcasm intended) so we do not feel entitled to someone else providing this prevention. ”

    Scientists have also revealed that engaging in hobbies like football, mountain climbing, or motorcycle racing can cause accidents, so maybe you shouldn’t feel entitled to someone else providing you with coverage for health care related to such accidents. Even if, you know, you’re already paying them for insurance that ought to provide such coverage.

    Scientists have additionally revealed that having children is more expensive than using birth control, so why should you feel entitled to having your employer cover your children’s health insurance? It’s a free country – if your employer decides you have too many children, or that your child is better off being prayed for than given antibiotics, vaccines, or cancer treatments, they ought to be able to tell you that that’s all your insurance will cover, even if it’s prohibitively expensive for you to get insurance somewhere else, and even if you’re paying substantial amounts for the fake insurance you get. Why is that not OK? There’s nothing prohibiting you for paying additional money for stuff you’ve already paid for – why shouldn’t your employer be entitled to compel you to do so?

  • Catken1

    Fact is, government sets certain standards for compensation that public businesses must offer their employees. We do this because otherwise some employers take advantage of the system and shortchange their employees, leaving them dependent on public welfare and charity that we all fund. You can’t pay your employees $1.50 an hour, and you can’t give them substandard health insurance when they’re paying with their contributions and labor for what should cover their needs. That’s been found to be perfectly legitimate and Constitutional law.

  • IIday

    The groups protesting paying for birth control, is really trying to destroy the AFC bill. Employers should be responsible for a paycheck, not a health check.
    I, totally agree with Barry’s article, about religious freedoms.

  • KCHam

    What some folks are missing here is that the companies suing are demanding that they be able to tailor the insurance to their liking even though they could pay less with a standard policy that would include these items.
    This is a way to control your employees private life when you as the employer decides your theological beliefs override your employees beliefs.

  • IntellectOne

    This article has things turned around. It is the Government ‘mandating’ and ‘forcing’ the individual to go against their religion by being forced to buy insurance that bundles birth-control, abortion on demand, sterilizations into the Insurance Benefits. Not only is the American forced to kill their neighbor, mandated by the government through insurance, but by their taxes. The Hyde Amendment prohibited that tax money be used for abortions. Congress purposely left the Hyde Amendment mandate out of the ‘The Affordable Healthcare Act aka Obamacare.
    The Government is going against the Constitution Of the People, For the People and By the People. How? By not respecting the citizens Conscience Clause and totally against the Freedom of Religion. The Government with the Affordable Healthcare Act aka Obamacare is the one that is ‘Redefining’ Religion to a State Controlled Religion! The American will be harassed, by the IRS, if they do not buy the Insurance with benefits bundled; birth-control pills, Abortion on Demand, Sterilizations, into the Insurance Premiums. These mandates are dictated and forced onto its own citizens by the Government.

  • cricket44

    Nope. These are businesses, not individuals. The only individuals having their religious liberties infringed are the employees.

  • IntellectOne

    Not True, people that own businesses are also individuals. Corporations are considered individuals, but that is beside the point. The people that own the Corporation pay taxes on the individual basis. The Stockholders are individuals and pay taxes on the dividends for this garbage of a so-called- healthcare. Individuals work for a company.
    Besides the employee has a choice for who they want to work. The employee going in should know what the policies are before they go to work for a company. Any employee that would work for a Catholic School or Catholic Charities is stupid , rude and very disrespectful to think they these organizations should pay for these horrific “benefits” . Example : The Birth-Control Pills (Abortifacients ) , Elective Abortion on Demand (full-term) Sterilization. None of which are healthcare. The baby dies and sometime the mother too.

  • sailorsmiles

    Barry Lynn was NEVER long on logic….and this article proves it

    whatever is anti-religion, this guy will sign up for ,….leave your logic at the door

  • thebump

    “Should your boss be able to determine which prescription medications you take at home?”

    This is called a straw man, since it is preposterous and mendacious misrepresentation of the actual question. The author is thoroughly dishonest.

  • thebump

    Rubbish. Anybody who’s so weak and pathetic that they make life decisions based on benefit policies at work needs serious mental health attention that probably isn’t covered.

  • thebump

    ” Employers should be responsible for a paycheck, not a health check.”

    Okay, and by that logic we should abolish all employer-provided medical insurance.

  • Joel Hardman

    How would you better characterize the situation? Personally, I don’t think Lynn’s take is far off the mark. Some religious employers want to be able to restrict the choices their employees can make with employer health care benefits.

  • Joel Hardman


    Your comment is just silly. Barry Lynn is a minister. How can he be anti-religion? He’s an advocate of the separation of church and state, not anti-religious.

  • IntellectOne

    To Joel Hardman:
    That is Barry Lynn’s problem. “separation of church and state” Every individual has a ‘Right’ to his or her Religion and not to be a schizophrenic. The Constitution never demanded that you leave your Religion at home or only worship in the Church. The Constitution clearly states that you can bring you Religion into the ‘Public Square’. It is Freedom of Religion; Not Freedom From Religion.

  • bruce18

    This is dopey logic. Buy contraception using your cash. Forcing another entity – in this case your employer – to provide “insurance” is coercion. That is what the first amendment prohibits – government coercion – contrary to religious beliefs. The control is running from employee backward, not from the employer.

  • genericrepub

    So let’s see, your employer gets your medical bills and knows now that you’re sexually active contrary to its views. Let’s say you the employee signed a morals clause in your contract and let’s say that the employee is messing around with another employee. Ooops. Making employers pay for birth control may have lots of unintended consequences none of which are religious.

  • NotasCompetitive

    I’m getting a sense that birth control is not so much the issue but that abortion is? That’s why this makes no sense to me. Anyone who is anti-abortion should be pro-birth control. People get abortions because they have an unwanted pregnancy. Whatever the method is for preventing an unwanted pregnancy, using contraception will prevent the majority of unwanted pregnancies.If someone does not get pregnant when they don’t want to be, they will not need an abortion to begin with.

    Some people seem concerned that the masses are not concerned about preventing pregnancy, that they just want to use oral contraceptives as an abortion pill. I believe that the overwhelming majority of people use oral contraceptives because they are planning to avoid an unwanted pregnancy or to treat another hormonal medical condition, not to get an abortion.

    Oral contraceptives require a doctors prescription and they are one of the most effective methods of preventing an unwanted pregnancy in existence today. When one visits a doctor, the doctor writes a diagnosis code to explain the condition being treated. if the reason for the visit was to use an oral contraceptive as an abortion pill, it would be denied coverage under the new laws and the patient would have to pay out of pocket for the morning after pill or have the baby. I’m OK with that.

    Those organizations involved with this lawsuit should be ashamed of themselves as they are forcing us all to pay for their frivolous lawsuit with our tax dollars.If they don’t want to pay for oral contraceptives, they can pay the fines or move to another country. I can buy my gnome stickers from another vender or do without.

  • swags1

    Sounds like a lot of conservative arguments for single payer.

  • Jimmy Page

    Of course the washington post isn t big brother yet…..they’re more likely to be talking about rehab than ms lohan, more likely to go on an on about abortion than a mad scientist doing abortions in arkansas or texarkansasnsasand tho less likely to reflect on the past than the living members of the nixon administration…..but you gotta give them this no matter what and how much they don t stop….

  • itsthedax

    Intellectnone, it means that I am free from your religion, and you are free from mine.

  • Catken1

    Getting health insurance through your employer does not, last I checked, give them access to your medical bills or medical records.
    Plus, who demands or signs a “morals clause” these days?

  • Catken1

    Why isn’t it “coercion” to force your employer to pay for your birth control via the salary they provide you?
    What makes one sort of compensation belong to the employee, to do with as they please, and the other owned by the employer, to be doled out in condescending tones to those employees who are Good and Obedient to the employer’s religion? The employee earns BOTH.

  • Catken1

    Whine, whine, whine. That kind of argument means thebump has no logical response, and must respond with a, “Not FAIR! They were DISHONEST enough to disagree with me!”

  • Catken1

    “Every individual has a ‘Right’ to his or her Religion and not to be a schizophrenic. ”

    And therefore, you have the right to spend the compensation YOU EARN as YOU see fit and not as your employer deems appropriate according to THEIR religion.

    “The Constitution clearly states that you can bring you Religion into the ‘Public Square’.”

    But only if it’s IntellectOne’s religion – no one has the right to make your child pray to Allah or Shiva in public schools, or to require you to give over your body to someone their religion deems more human and more important than you, or to veto your civil marriage because your choice of spouse doesn’t abide by their religious taboos, or to dock your pay because you had a medical procedure they deem sinful…

    Freedom of religion MUST include freedom from religion – if someone else can coerce you into abiding by their beliefs in your private life, you have no freedom of religion. And yes, this includes your employer, even when it comes to the compensation you earn from them. A Gaian employer can’t dock your compensation for having too many children, and a Catholic employer ought not be able to dock your compensation (the effective result of being forced to pay for more expensive insurance – insurance without compensation being more expensive – and then having to pay double for medication your insurance ought to cover) for using contraception.

  • Catken1

    Gee, thebump, how weak and pathetic it is for people to make decisions about what they can do based on what they can afford!

  • cjw1168

    I think it is ironic that Hobby Lobby in particular has got its knickers in a knot over the morning after pill and other forms of birth control based upon their belief (which most medical experts disagree with) cause abortion. Their stores are filled with stuff made in China. In fact, one would hard pressed to find anything made in the US and one would be hard pressed to find anything not produced in China. Ironic because while they are obsessed with birth control foe their employees, their business model is based on selling cheap crap from a country where there are forced abortions and female infanticde. Guess their religious beliefts end at their bottom line.

  • cjw1168

    really? How about if your employer doesn’t believe in surgery or blood tranfusions? Some religions don’t. So where does the line stop? Some employers may believe their corporations don’t believe in antibiotics, or cancer treatments…or maybe instead of insurance they could just offer employees laying on of hands. And when is the last time you saw little corporation next door deliver your paper, or riding his bike? When is the last time you saw little corporation sitting in the pew at church? OH NO MR BILL!!! Perhaps the corporations parents have got him locked in a closet!!! Some one do a welfare check on little corporation….

  • cjw1168

    Corporations were formed in order to seperate the owners from certain liabilities. In many cases this is for tax reasons If the owners didn’t want those tax breaks or protections theycould have chosen not to incorporate. If the owners wanted to seperate themselves from their business, now they shouldn’t be able to claim the corporation’s ” beliefs” are the same as their personal ones.

  • cjw1168

    I presume employees pay for these premiums?

  • DCFanOutWest

    Ironically, natural selection favors disdain for birth control.

  • DCFanOutWest

    Excellent article on a tricky topic.

    I strongly support separation of church & state, and typically find efforts to inject non-secular morality into law obnoxious, disingenuous, holier-than-thou and generally uncalled for.

    I also despair of disdain for birth control, especially prophylactic.

    However, the explicit ACA coverage of birth control did seem unnecessary. You’re making me re-think.

  • coldcrankcase

    unfortunately, the human race stepped outside of the realm of natural selection a long time ago.

  • Mat50

    I never understood how certain groups felt they could not pay standard operating expenses that might be used by the government to pay for something they didn’t agree with. I never understood how religious institutions could believe that the availability of funds for employees’ health care equated automatically with their employees making “unapproved” / forbidden life style choices, including when and if to have a child. If corporations/religious institutions have to pay some sort of standard taxes by law of the land, they have to put up the money and keep their own counsel. Period. They are not yet the Taliban.