NJ Law Journal Editorial: Contraception Conscience Exception Unwarranted

The `Blunt Amendment' would permit any employer to refuse on grounds of conscience the federal mandate that health insurers offer contraceptive care without deductibles.  The New Jersey Law Journal Editorial Board says that the measure goes far beyond what is needed to reasonably accommodate those whose religious doctrine proscribes use of artificial contraception.  The measure was rightly rejected by the Senate.  General laws even-handedly applied may prescribe conduct inconsistent even with religious doctrine. - GWC

copyright American Lawyer Media - New Jersey Law Journal, May 7, 2012
Every Man a King

On March 1, the U.S. Senate voted to table the Respect for Rights of Conscience Act, S-1467. The measure languished until the storm of controversy provoked by the announcement that contraceptive care without deductibles must be offered under the Affordable Care Act by all employers, except churches who object.
Many objected to the narrow definition that compelled Catholic-led hospitals and universities to offer birth-control coverage, including all approved contraceptives, as recommended by the Institute of Medicine and the Food & Drug Administration. The Obama administration quickly retreated, saying that hospitals and other religiously affiliated institutions need not pay for the benefits if their leaders' principles would not permit it. In such cases, beneficiaries would still be entitled to the benefit: but it would be provided by the insurer at no cost — something the insurers reportedly welcome because contraception is cheaper than pregnancy.
The Catholic Health Association welcomed the change but the Catholic bishops were not mollified. They threw their support behind S-1467, saying "The promised 'accommodation' — even at its best — would still force our institutions to violate their beliefs. There's no exemption for objecting insurers, secular employers, for-profit religious employers, or individuals." The bill provides that the Affordable Care Act shall not "be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider's religious beliefs or moral convictions."
Such an accommodation cuts too wide a swath. The consciences and health needs of patients, students and employers are also entitled to respect. The administration's compromise respects both sides — the institutions which provide health benefits and the beneficiaries themselves — many of whom want or need to use contraceptives and other forms of artificial birth control, including condoms which prevent the risk of transmitting viral diseases such as AIDS.
The proposal to defer to the "moral convictions" of employers and health care providers is an invitation to disorder, to a world in which each is his or her own sovereign — free to demand an exemption based on "moral conviction." Coverage for vaccines, abortions, contraception, blood transfusions and other services would become a patchwork, based on the unfettered pleas by employers, educators, physicians and others that they harbored a "moral conviction" against it.
The Supreme Court has provided the doctrinal basis for rejecting such a broad accommodation to individual conscience. The support comes from Justice Antonin Scalia in Employment Division v. Smith, 494 U.S. 872 (1990). Writing for the court, Scalia explained that an employee fired for ingesting peyote in a Native American religious ritual had no claim for unemployment benefits. The court held that facially neutral laws of general applicability that burden the free exercise of religion require no special justification to satisfy free exercise scrutiny. InReynolds v. United States, 98 U.S. 145 (1879), where the court rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice, Scalia observed that the court had said:
"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
The Respect for Rights of Conscience Act contains the same defect. In its interpretation of the Affordable Care Act, the government has reasonably concluded that making contraceptive and other birth control care readily available serves the public health and welfare. The accommodations offered are an appropriate balance of individual conscience and public health. S-1467 goes too far and the Senate was right to reject it. We hope they remain steadfast in that respect.