Four More Reasons Why The Catholic Bishops’ Legal Case Against Birth Control Access Fails

Our Guest Blogger is Jessica Arons, Director of the Women’s Health and Rights Program at the Center for American Progress Action Fund

Last week, a number of Catholic-affiliated institutions brought 12 lawsuits around the country challenging the Obama regulation that guarantees birth control coverage in most health insurance plans.  This coordinated litigation follows a series of other cases that were filed earlier in the year by entities that similarly do not want to provide contraceptive coverage to their employees or university students.

By rushing into court, these organizations have completely ignored the fact that the Obama administration has already begun to promulgate a second regulation to accommodate religiously-affiliated institutions by allowing them to opt out of providing contraceptive coverage to their employees or students.  Instead, insurers will provide that coverage directly and objecting institutions will not have to pay one red cent.  But even without that accommodation, careful analysis shows that the initial regulation is perfectly lawful.

All of these lawsuits claim that the regulation violates the plaintiffs’ religious liberty and hinge in particular on a federal statute known as the Religious Freedom Restoration Act (RFRA).  Because Supreme Court doctrine holds that the First Amendment of the Constitution is not violated by a neutral, generally applicable law like the birth control rule, the plaintiffs are relying heavily on RFRA’s stricter test, which states that any law that 1) “substantially burdens” a person’s exercise of religion can only be upheld if 2) it is in furtherance of a compelling governmental interest and 3) is the least restrictive means of furthering that interest.

Putting aside for the moment whether these institutions even qualify as a “person” under RFRA, the plaintiffs in these cases should not be able to get past the first part of RFRA’s three-prong test.  Here are four reasons why requiring an employer or university to cover contraception does not burden conservative Catholics’ exercise of religion any more than they already are burdened:

  1. Insurers pool premiums from multiple clients and do not differentiate among premium dollars when paying claims. Even if a religiously-affiliated institution has a plan that excludes contraception, it is highly likely that the premiums from that plan are nevertheless being used to pay contraception claims.  Under current industry practice, a large insurer like Blue Shield or Aetna collects premiums from multiple clients and then comingles the funds.  Thus if any of an insurer’s plans cover contraception, any of the premiums it collects could be used to pay a contraception claim, regardless of whether any particular plan excludes such coverage.
  2. Health insurance is part of an employee’s compensation package. Even if an employer pays the full premium for its employees, that premium is a payment that is made on behalf of the employee to compensate her for her work.  Thus, it belongs to the employee, just as her salary does.  There should be no difference, at least on the question of what burdens religious practice, between paying an employee a salary that she then uses to purchase birth control herself and paying a premium for an employee’s insurance plan that she then uses for contraceptive services.
  3. An objecting institution is unlikely to pay the entire insurance premium itself. Most employers pay only a portion of a health plan’s premium; the rest of the premium is borne by the employee.  And at most universities, students typically pay 100% of the premiums through their student fees.  Thus, to the extent premium money is allocated to cover the cost of contraception, it can be deemed to come from the employee’s or student’s share of the premium.
  4. Most non-profit institutions receive government funding. The lawsuits argue that the government could have achieved its goal of providing women with access to contraception by setting up an entitlement program that provides family planning services, funded with taxpayer money, that all women could utilize.  However, religiously-affiliated hospitals receive government money in the form of Medicare and Medicaid reimbursements, religiously-affiliated universities receive tuition paid for by Pell Grants, and religiously-affiliated charities receive grants to provide services to the needy.  Nothing prevents these entities from setting aside some of this taxpayer money to pay the share of premiums estimated to account for the cost of contraceptive coverage.

No matter how you slice it, paying a premium for an insurance plan that happens to include a service to which one objects is simply too attenuated an act to violate free exercise. Paying an insurance premium is more closely analogous to paying a tax for something one finds morally objectionable, and it is well-established that no one gets to pick and choose which services their tax money will support based on their religious beliefs.

Nothing in the regulation requires someone to use birth control or purchase birth control directly, nor does the rule prevent anyone from preaching against birth control or trying to convince others not to use it.  Indeed nothing prevents an institution from issuing a disclaimer saying that it is covering birth control only because the law compels it, in order to ensure that compliance is not equated with acceptance.  But paying for birth control coverage is simply too ephemeral a transaction, especially in the above instances, to be seen as substantially burdening religion.