Religious freedom deserves deference on birth control
If the Obama administration had thought more seriously about the importance of religious freedom, it might not have ended up in the Supreme Court on Wednesday doing battle over free birth control with the Little Sisters of the Poor.
But while writing rules for Obamacare in 2012, the administration decided to compel religiously affiliated non-profit groups to assist in offering health care plans that violate a central tenet of their faiths.
From a purely health care standpoint, Obamacare’s mandate that all employers provide birth control coverage without co-pays makes sense. As the prestigious Institute of Medicine found, this is an important part of preventive care for women.
Wisely, the administration exempted churches and other houses of worship from the start. Unwisely, it failed to exempt religiously affiliated colleges, charities and other groups, including the Little Sisters of the Poor, a group of nuns who provide care to the elderly poor.
The administration’s position was constitutionally suspect and politically foolish. Even its later “accommodation” — under which non-profits may opt out of direct
ly providing coverage — triggered a deluge of lawsuits by 92 religious non-profits across the country. On Wednesday, seven of those lawsuits were argued together at the Supreme Court in one of the most widely watched religious freedom battles in years.
The dispute centers on the accommodation, which is less of a fix than a fiction: Although religious groups do not have to supply birth control coverage themselves, they must give the government what amounts to permission to get their insurers to provide it instead. The outcome is identical. As several groups argued to the Supreme Court, it requires them “to do the very thing that they find religiously objectionable.”
On Wednesday, conservative justices voiced sympathy for the argument that the accommoda- tion amounts to overriding religious objections and “hijacking ” the groups’ health plans, as Chief Justice John Roberts put it. Liberal justices seemed unimpressed. Some burdens, Justice Stephen Breyer said, are the price of “being a member of society.” The court — minus Justice Antonin Scalia, who died last month — seems headed for a 4-4 split.
True, some non-profits have found the accommodation acceptable, which is fine. Others clearly do not, and as the Supreme Court held in an earlier religious freedom case, it is not up to courts to determine that certain “religious beliefs are mistaken or insubstantial.”
None of this had to happen. When the administration was formulating its policy in 2011, the Rev. John Jenkins, president of Notre Dame and an Obama supporter, urged the administration to adopt an expansive exemption already in the tax code for employers who share “religious bonds and convictions with a church.” Simple and effective.
Had the administration listened, it would have avoided years of legal battles. It might have used the time and energy to find creative ways to offer free birth control to religious groups’ employees. And one of the nation’s most sacred rights — religious freedom — would have been granted the respect it deserves.