By David Gushee
Congress passed the Affordable Care Act in 2010 over the strenuous objections of the Republican opposition (which continues to view it as illegitimate and hopes to see it struck down very soon). In an effort to advance access to needed health care for a greater number of Americans, as well as to reduce health-care costs, this new law required health plans to offer free access to services of preventive care.
The bill required that women’s preventive care be covered according to the guidelines supported by the federal Health Resources and Services Administration. The HRSA, in turn, recommended that those services include all FDA-approved contraceptive methods and sterilization procedures. That means that as of Aug. 1, 2012, with few exceptions, all health-care plans must cover such procedures cost-free to members.
Religious liberty concerns around reproduction were understood to be significant. The administration carved out an exemption from the so-called “contraceptive mandate” for religious employers such as churches and their associated conventions.
But it did not initially cover a broader range of religiously rooted organizations such as hospitals and universities, which often have a religious heritage or religiously motivated mission but large numbers of employees who are not members of that religion.
Those agencies were given a one-year grace period before these rules would apply. After that they would in fact apply, full stop. The rule aroused the fierce opposition of the Catholic Church hierarchy. Then opposition spread more broadly and unexpectedly beyond just the Religious Right.
Some religious centrists and liberals, together with some religious liberty organizations, said the administration had gotten the balance wrong between advancing women’s health according to current medical standards and honoring religious liberty.
So after several weeks of uproar, the president announced a compromise. The final rule for this broad category of religious employers will exempt these employers from having to offer contraceptive coverage, but the insurers themselves will still have to provide cost-free access to such services for their workers.
Washington & Lee law professor Timothy Jost argues that because insurers recognize that preventive services save them money, it is the insurers rather than the employers who will in fact, and not just on paper, be paying for these services. The main unresolved problem here, and it’s a real one, is what employers who self-insure are supposed to do.
First Amendment law is extraordinarily complex, and it has been so for the entirety of our nation’s history. The most important cases always involve agonizing balancing acts between real goods — in this case public health (in a society with alarmingly high abortion and illegitimacy rates) and religious liberty.
Few among us are First Amendment experts, but I shared the gut response of many in my branch of the Christian community that the Obama administration had erred legally in drawing the religious exemption as narrowly as it did. It certainly erred politically in taking a step that aroused the opposition of so many people of faith. This political debacle could have been prevented. Insiders say that those within the administration who warned this regulation would evoke broad outrage were defeated by other voices, until the president finally intervened.
Obama’s resolution of the matter was welcomed by groups such as the Catholic Health Association, Notre Dame, Catholic Charities (until they rescinded their endorsement), the Association of Jesuit Colleges and Universities and numerous Catholic, evangelical, mainline and Jewish leaders. But it is not enough for the Right. Conservative evangelical leaders continue to send out e-mail appeals describing this as “the greatest religious liberty fight of our lifetime.”
I don’t see it that way. The Right is going wrong in dismissing the legitimate public-health concern related to women’s access to contraception. While I believe their concerns about the Plan B morning-after pill are more legitimate, they are irresponsible to project a “war on religion” from the White House – rhetoric that seems aimed at replacing its current occupant.
Some of the current legislative proposals in Washington would allow any employer to deny birth control or any other coverage if they can claim that it runs counter to their beliefs. This is not really about birth control. It’s about gutting any federally mandated health-care rules.
It’s about killing not just Obama’s health-care law of 2010 but the very idea of federal regulations on private health-care plans. If successful, such laws would do cruel harm to women and would undoubtedly increase the number of both abortions and out of wedlock births.
Politics is a messy, nasty business. But it doesn’t have to be this messy and nasty.