Gender & Sexuality Law Blog

Check out the contribution Elizabeth Sepper and I made to the U.S. News and World Report “Room for Debate” discussion about:

Should Catholic and Other Religious Institutions Have to Cover Birth Control?

Last month, President Obama announced his administration’s plan to require religious employers, like universities and hospitals, to cover contraceptives in employee health plans. Obama’s new mandate would not require employers at houses of worship to provide their employees with contraceptives, but his announcement sparked a firestorm in different religious communities, pitting freedom of religion against the separation of church and state.

Obama has since said that he and his advisers are looking for ways to make the new requirements “more palatable” to religious institutions.

Proponents of the requirement argue that 98 percent of women in the United States have used birth control in their lives and that free access to contraceptives reduces unwanted pregnancies and lowers abortion rates. Likewise, they point to the separation of church and state, a key American doctrine, and hold that religious views on contraception have no bearing in the workplace. No one is requiring the use of contraception, their argument goes, only requiring that it be available to those who want it.

Unsurprisingly, Speaker of the House John Boehner and many Republicans have vowed to fight the president’s new policy. “This attack by the federal government on religious freedom in our country cannot stand, and will not stand,” Boehner said in a floor speech on Wednesday.

Opponents of Obama’s proposed requirement argue that requiring religious people to provide birth control violates religious freedom, another one of the country’s foundational tenets. They say that requiring people to violate their consciences is bad policy and that the president is getting involved in a culture war to stimulate his liberal cabal in an election year.

Should religious institutions be required to cover birth control? Here’s Katherine Franke’s and Elizabeth Sepper’s take:

Please vote “YES” on their website, in favor of our position!

Religiously owned or affiliated organizations ought to play by the same rules as other employers

The better way to frame the question is: Should employers with a corporate relationship to organized religion be permitted to avoid constitutionally protected health measures that every other employer must follow? Of course not.

Setting aside the politically charged question of contraception for a moment, would this issue be so difficult if we were considering a demand by a Christian Scientist-owned construction company to be exempted from state-mandated health and safety regulations for its employees because it prefers to rely on prayer? Of course not.

Religiously owned or affiliated organizations that employ people of all faiths and backgrounds ought to play by the same rules as every other employer, including being subject to health, safety, and labor regulations. They provide goods and services to the public and are the beneficiaries of ample taxpayer funded grants and subsidies. Their status as religiously owned or affiliated shouldn’t allow them to pick and choose which public regulations they must comply with.

The Obama administration’s new rule requiring employers—except for houses of worship and a narrow array of religious organizations—to cover contraception is smart health policy. What’s more, it strikes a balance that respects both religious diversity and employees’ dignity and liberty.

Click here for the rest of our argument.