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Thursday, September 15, 2011



Last month, the US Department of Health and Human Services (HHS) issued new Affordable Care Act guidelines requiring health insurance carriers to provide free access to birth control and women’s preventive services without cost-sharing beginning August 1, 2012. Adopted from recommendations made by the Institute of Medicine, these regulations mandate that new insurance policies must include annual gynecological and well-woman visits, breast-feeding support and counseling, STI counseling and domestic violence screening free of co-pay, co-insurance or deductible, while covering the costs of contraceptives and contraceptive counseling, HPV, HIV and gestational diabetes screenings, and DNA testing for women age 30 and older.

In addition to the guidelines, HHS also released an interim religious exemption amendment that would give religious employers the choice to not provide contraception services in their group health plans or coverage connected to such plans (the administration is welcoming comment on this rule until Friday, September 30).This First Amendment-friendly clause, based on established “conscience protections” available in most states already requiring contraception coverage, delineates a religious employer as one that:

  1. has the inculcation of religious values as its purpose;
  2. primarily employs persons who share its religious tenets;
  3. primarily serves persons who share its religious tenets; and
  4. is a non-profit organization.

In short, this classification is only relative to houses of worship like synagogues and churches—where possible anti-contraception views of the institution’s executive are commonly shared by the institution’s workers—thus ensuring that the constitutionally-protected right to religious freedom and right to privacy is intact across the board. Yet, for a number of Catholic intellectuals, this definition is just too narrow.

Religious academics and leaders, such as Georgetown University’s Rev. Thomas Reese and Catholic University’s Professor Stephen Schneck, contest the current language of the clause, claiming it excludes institutions that, while affiliated with religion, employ and serve people of all moral backgrounds. It infringes on their First Amendment right to freedom of religion, they say, instead suggesting the definition be broadened so that organizations like Catholic hospitals and charities can be included in this protection. But using language that encompasses those types of employers would only complicate the issue of the amendment’s constitutionality.

How so? Employees are protected by the 14th Amendment’s right to privacy as established in 1965’s Griswold v. Connecticut, and later affirmed in 1972’s Eisenstadt v. Baird and 2003’s Lawrence v. Texas. While the religious institution is offering the group health plan at a discounted rate, it is the employee who is paying the monthly premium to keep their coverage, which is typically deducted from their paycheck before taxes. Therefore, this shifts the responsibility of the health policy to the employee—the employer is the mere provider—turning it into a private individual matter. What contraceptives and services the employee uses as covered by said policy should not be impeded nor denied. Furthermore, if an organization that employs people of different faiths opts out of the contraceptive option, they are indeed infringing on their employees’ right to not only practice religion freely but to not be forced to adhere to opposing religious beliefs, as protected by the First Amendment.

But the corporation may also have some footing. As legal journalist Lyle Denniston recently discussed for Constitution Daily, corporations are privy to some constitutional rights, such a broad right to free speech as upheld in last year’s Citizens United v. Federal Election Commission. Additionally, he writes, corporate records are somewhat protected by the Fourth Amendment’s limit on government searches, and an 1886 California case established that the 14th Amendment’s equal protection clause does, in fact, apply to corporations. Even so, this question of “corporate personhood” is not exactly cut and dry—in this year’s Federal Communications Commission v. AT&T, the Supreme Court ruled that the Freedom of Information Act’s “personal privacy” protection does not apply to corporate records. Still, using the Citizens United ruling as a base, a religious institution would have a viable argument under the First Amendment’s freedom of religion clause if they are required to offer a service that goes against their moral judgment.

It would be interesting to see if and how HHS revamps the language of the religious exemption amendment. Would they chose the side of the individual or the corporation?

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