Obama’s Conscience Protection Clause Has Been Upheld In Court

Julie Rovner has a good piece explaining how President Obama’s contraception regulation is modeled on existing state laws in 28 states, a December 2000 ruling by the federal Equal Employment Opportunity Commission — which ruled that “failure to provide such coverage violates the 1978 Pregnancy Discrimination Act” — and has even been upheld in several court challenges:

In 2004, the California Supreme Court upheld that state’s law, in a suit brought by Catholic Charities, on a vote of 6-1.

The court ruled that Catholic Charities didn’t qualify as a “religious employer” because it didn’t meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):

The organization’s primary purpose is “the inculcation of religious values.”
It primarily employs people of that religion.
It primarily serves people of that religion.
It’s a registered nonprofit organization.

Two years later, in 2006, New York’s top state court rejected a claim by Catholic Charities and several other religious groups that the state’s contraceptive coverage law discriminated against them because it exempted churches but not their religiously-affiliated groups.

When a religious organization chooses to hire non-believers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit,” the justices wrote.

Indeed, the government should not infringe on a house of worship’s religious doctrine, but it should also protect the liberties and rights of employees who work for religiously officiated institutions that serve the public good. Colleges or universities are free to preach about the evils of contraception to their workers. Yet since 58 percent of women use contraception for medical reasons besides, or in addition to, family planning, the decision to swallow the pill should be left to the conscience of every employee and the employer should never be allowed to stand in between a woman and her doctor.


Jake Tapper is reporting that the White House will announce some kind of “accommodation” later today. “The move, based on state models, will almost certainly not satisfy bishops and other religious leaders since it will preserve the goal of women employees having their birth control fully covered by health insurance.
Sources say it will be respectful of religious beliefs but will not back off from that goal, which many religious leaders oppose since birth control is in violation of their religious beliefs,” he reports. [I]t will involve health insurance companies helping to provide the coverage, since it’s actually cheaper for these companies to offer the coverage than to not do so, because of unwanted pregnancies and resulting complications.

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