Why should anyone who doesn’t have a religious objection to the Affordable Care Act’s “contraceptive mandate” care about it one way or the other?
As a legal fellow with the Becket Fund for Religious Liberty, I’ve spent the last few months defending religious employers against the government’s efforts to impose the mandate upon them, even though I’m a pro-choice atheist. I’m proud of having done so. Here, I will argue that those who are concerned with individual rights and the real-world impact of policy choices should stand alongside me, regardless of their religion (or lack thereof). They should do so because (1) the mandate is unjust, and (2) it will hurt those whom it is intended to help.
Briefly, the mandate requires employers to offer their employees coverage for FDA-approved contraceptives (including drugs and devices that may prevent implantation of a fertilized egg in the womb, which some regard as abortifacients) as well as sterilization procedures. It is enforceable by government penalties, regulatory action, and private lawsuits. The government has granted a narrow exemption for certain non-profit “religious employers.”
For-profit employers, like Hobby Lobby, a nationwide arts-and-crafts retailer, are not eligible for the exemption. Hobby Lobby’s owners, the Green family, have always striven to run their business consistent with their Evangelical Christian beliefs—for example, Hobby Lobby is closed on Sundays and the Greens take out hundreds of full-page ads every Christmas and Easter that invite people to “know Jesus as Lord and Savior.” The Greens have no moral objection to the use of preventive contraceptives but cannot provide or pay for two specific drugs—Plan B and Ella—that they consider to be abortifacients. The mandate forces the Greens to choose between providing insurance coverage for both of these drugs or paying up to 1.3 millions dollars per day in fines.
The government’s lawyers have argued that the mandate will further gender equality. The disproportionately high health care costs that women face are real, as is their impact on the progress of women’s careers. Yet the mandate also burdens employers who object to the use of contraception and/or abortifacients on religious grounds. Those who are concerned about individual rights as well as the concrete impact of policy choices must consider (1) whether this is just, and (2) whether it may end up hurting those whom it is intended to help.
As understood by Aristotle, justice consists in giving individuals what is due them—what they deserve. What we deserve depends on what we are. We need to produce and exchange valuable goods and/or services with others in order to sustain our lives, and we need to use our reason to do so. Thus, justice requires that we have the freedom to make use of our reason to engage in productive activity as we choose—so long as we don’t interfere with the rational pursuits of others.
On this understanding, the mandate is unjust. It prevents non-exempt religious employers from earning a living in the way that they choose unless they compromise their moral principles. Such religious employers are not free to use their reason to produce and exchange. They are only as free as the state allows them to be.
Further, there is a real risk that the mandate will do more harm than good. I have spent months studying documents that describe the faith commitments of religious employers, as well as their financial standing. Many of these employers will not compromise, and the fines that they will be subjected to will force them to let employees go. Those who find themselves jobless are not likely to see this as a victory for the cause of gender equality.
The mandate, then, does not merely threaten religious conservatives. It threatens all who believe that the state has no right to legislate morality and impose crippling penalties on those who fail to worship before its alter. It compels individuals to compromise their moral principles as the price of earning a living and will result in the loss of livelihoods for employees and competitively-priced goods and services for consumers—believers and nonbelievers alike.
This state-sponsored assault on the ability of individuals to believe what they choose, so long as they do not harm others, is an assault on individuality itself. Those who don’t have religious objections to the mandate ought nonetheless to stand alongside religious objectors in opposing it.
Evan Bernick is a Legal Associate at a DC think tank and a Legal Fellow with the Becket Fund for Religious Liberty.
I disagree, for reasons I wrote about here last year:
http://www.allourlives.org/on-the-contraception-mandate/
In a nutshell, the health insurance an employee earns as part of their employment package is compensation for their work, just as their salary is. The employer’s religious freedom does not extend to telling employees that they may not use their compensation — and the health plan is legally the employee’s — in ways that are against the employer’s religion. The decision to use or not use the contraception benefit in the health plan is entirely the employee’s, and does not implicate the employer or imply the employer’s approval of her decision any more than buying contraception with her salary would.
I’d like to highlight an important portion of Mr. Bernick’s argument: “We need to produce and exchange valuable goods and/or services with others in order to sustain our lives, and we need to use our reason to do so. Thus, justice requires that we have the freedom to make use of our reason to engage in productive activity as we choose…”. Using this logic, the ENTIRETY of the ACA is wrong, not just the contraception mandate. In a genuinely free society, compensation is negotiated between employer and employee, not mandated by government. Laws that establish mandatory degrees and forms of compensation are unjust. Employers put a lot of time, effort, & money into growing their businesses and should not be told by their government how to run them, period.
But this discussion is not complete without examining why U.S. employers began offering health insurance in the mid-to-late 20th century: the introduction of the payroll tax. Employers now pay taxes based on the wages of their employees, and this adds considerably to the cost of doing business (I know, employers have unlimited funds, so who cares about their costs?). To contain costs while still attracting good-quality workers, employers began offering untaxed compensation, like insurance policies and retirement plans, in lieu of wages. If we made cash-only compensation affordable again through tax reform, maybe employees would earn a sufficient salary to shop for their own insurance that offers every coverage their little hearts desire. Maybe they wouldn’t even need contraception coverage because they’d have enough money to pay for it out-of-pocket. Lord, it makes me SO crazy when the economically-impaired spout off about this stuff!
>>> The employer’s religious freedom does not extend to telling employees that they may not use their compensation — and the health plan is legally the employee’s — in ways that are against the employer’s religion. The decision to use or not use the contraception benefit in the health plan is entirely the employee’s, and does not implicate the employer or imply the employer’s approval of her decision any more than buying contraception with her salary would. <<<
Please note: for this argument to be _remotely_ plausible, the government would have to somehow guarantee the employer that the compensation they owe their employees would not increase as a result of the HHS mandate. It assuredly will not.
You might have a point if employers were not required to provide a health plan in the first place.
In my view, employers should have complete freedom of whether or not to provide health coverage, and employees should have the freedom whether or not to accept a job from an employer that refuses to offer health coverage.
That is what pro-choice is.
Is there any limit to this religious exception? If it is OK to decide what insurance an employe has can an employer prevent employees from drinking? Can I do peyote if my religion calls for it? Can I discriminate against Blacks if my religion calls for it? If can get an exemption from the law because it goes against my religion what can stop me from almost anything?
Yes, yes, and yes; for instance, one could legally mandate for employers to finance an act of immorality. That is to say, “almost anything” in the name of freedom has indeed happened already, and religious liberty was what suffered for it. One would have to consider religious liberty as less of a thing than the luxury to have sex with a high guarantee against pregnancy, which is what the recent mandate has done. Not sure what this new liberty is (it could be called religious liberty, in fact), but whatever name it goes by, “almost anything”, as you define it, has been done in the name of it.
Yes, there are limits, namely, constitutional and federal statutory rights. To the extent that these are violated by your exercise of your religion, you can be limited in your exercise of your religion. I have yet to see a compelling argument that an employer’s failure to subsidize access to a limited subset of FDA-approved contraceptives constitutes a violation of employee’s constitutional or federal statutory rights. A person’s right to speak freely does not oblige anyone to provide them with a printing press. By the same token, a person’s right to use contraceptives does not entail a right to force others to pay for them.
Excellent analogy, Mr. Bernick! May I quote those last 2 sentences on my Facebook page? I still have many liberal acquaintances who still firmly believe that opponents of the HHS mandate are trampling all over their Constitutional rights!
Thanks, Jen. Of course!
Thank you.
Mandates are not pro-choice.
Refusing to pay for someone else’s contraception no more involves imposing religion than refusing to pay for beer, wine, or Disneyland annual passes.
So it appears that what we have here is a conflict between the following rights:
1. The right of the employer to set employment terms which correspond to his religious beliefs
2. The right of the employee not to have their healthcare options constrained by someone else’s religious beliefs
I fail to see the reason why 1) should trump 2), particularly given that insuring someone for contraceptive treatment is not by any means the same as giving someone contraception; insuring them for it merely gives them the option (which they should already have), rather than specifically constrains them.
If the employee does or does not wish to actually use their insurance to the effect of acquiring contraception, that is entirely her choice. What we have here is an employer demanding that they can dictate the healthcare package they offer based on religious grounds.
Now, I suppose the reason this exacerbates this so much is because the entire healthcare insurance system is absolutely baffling to someone who lives in a country that rightly enjoys free healthcare and separates it entirely from other walks of life; I honestly do not understand what on earth it is about something as basic and fate-prone as health that means it needs to be ‘earned’.
Anyway, the main point is that employee actions are as out of their employers’ actions as if the employee simply decided to use their wage to buy contraception. It is just not going to be an infringement or compromise of someone’s religious beliefs if they are mandated to provide this form of insurance!
1 trumps 2 because it is the employer’s money. No other reason is needed.
Yes, non believers should care. Anyone who believes in human rights should care. It’s not just “religious rights” that are being challenged it’s HUMAN rights. A human being has a right to clean air, clean water and a right to practice their religious beliefs. To me, this is more about human rights than religion per se. Human beings operate corporations and not the other way around. If it flips sideways, and corporations (like the US government itself) are running the humans, then we are losing human rights. Humans are at the core of this, not a room full of calculators and computers.