Monthly Archives: October 2017

Columbia Law Experts Denounce Federal Guidance Allowing Religious and Moral Discrimination in Contraceptive Coverage

Press Statement: October 6, 2017

Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) condemns the Trump administration for issuing sweeping new rules today that roll back the Affordable Care Act (ACA)’s birth control benefit, by broadening exemptions for employers who claim religious or moral objections to offering birth control to their workers. These regulations place the religious and moral views of employers above the health and wellbeing of their workers and gut the contraceptive coverage provision of the ACA by dramatically reducing access to affordable birth control. Rather than protecting religious freedom for all Americans, these regulations are part of the current administration’s ongoing effort to advance a limited set of conservative religious beliefs while limiting the liberty and equality rights of women, LGBTQ people, people of color, and religious minorities.

For over seven years, the religious right has waged a battle to limit the scope of preventive health care services covered by the ACA, including essential reproductive health care. In 2014, they won a significant victory when the Supreme Court ruled in Burwell v. Hobby Lobby that secular for-profit companies could assert religion-based waivers from the duty to include health care coverage for contraceptives in their employee health plans. The Court’s opinion hinged, however, on the fact that women would still have access to such care, which would be covered by their insurance plan rather that their employer. After another three years of litigation and intense lobbying, anti-choice advocates have at long last succeeded in making it possible for employers to entirely cut off their employee’s access to contraceptive coverage, not only because of their religious objections, but now because of their moral objections as well.

In depriving workers and their families of essential health care coverage, the regulation violates both the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. By requiring workers to bear the cost of their employer’s religious beliefs, the regulation conflicts with a clear line of Supreme Court cases which hold that where a government-created religious accommodation imposes serious harms on others, it ceases to be a valid protection of personal faith and instead becomes an unconstitutional establishment of religion.

“With these new rules, the federal government is giving the green light to employers to discriminate against their women workers, and those seeking access to reproductive care, in the name of religious liberty or individual moral belief,” said Katherine Franke, Sulzbacher Professor of Law at Columbia Law School and Faculty Director of the Public Rights/Private Conscience Project. “The fundamental health care needs of working women are now held hostage by right wing interest groups,” Franke concluded.

As PRPCP’s Racial Justice Program (RJP) has noted in the past, these types of rules have an especially devastating impact on women of color. Women of color have higher unintended pregnancy rates than their white counterparts and face increasing difficulties in accessing care. Eliminating these disparities requires increasing access to contraception and family planning resources, which allow women of color to plan whether and when they have a child, which research has shown provides them with greater financial stability and freedom. “Research shows that teen pregnancy rates have dropped to an all-time low in recent years due to increased access to affordable, quality contraception and education about family planning,” said Kira Shepherd, Director of PRPCP’s Racial Justice Program. “Native Americans, Black communities and Latinas, who have the highest teen pregnancy rates of all communities, stand to be harmed the most by these new rules, which limit young women’s and people’s ability to make informed choices about their reproductive health and lives. Here, the Trump administration has once again shown that it cares little about the health and wellbeing of communities of color.”

“President Trump’s repeated efforts to ban immigration from majority-Muslim countries—which a circuit court said drips ‘with religious intolerance, animus, and discrimination’—demonstrate that the administration is not concerned with protecting religious freedom for everyone,” said Elizabeth Reiner Platt, Director of PRPCP. “These rules are just another demonstration of the ongoing effort to push conservative religious beliefs about sex, marriage, and reproduction onto others who do not share those beliefs.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-ACA-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia

 

Columbia Law Experts Denounce DOJ Religious Liberty Guidance as Attack on Religious Liberty and Fundamental Equality Rights

Press Statement:
October 6, 2017

Contact:
Liz Boylan,
eboyla@law.columbia.edu, 212.854.0167

Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) denounces the memorandum released today by the Department of Justice (DOJ) entitled the “Federal Memorandum for Religious Liberty Protections.” This document, and its implementation guidance misinterpret the meaning and scope of religious liberty under the Constitution and the federal Religious Freedom Restoration Act (RFRA), demonstrating this administration’s continued commitment to elevating a particular set of religious beliefs over the safety and equality rights of women, LGBTQ people, people of color, and religious minorities.

As we have previously noted, we are concerned that this guidance will lead to the inappropriate and destructive under or non-enforcement of a host of essential health, labor, and antidiscrimination laws and policies. “Today’s DOJ guidance will have tangible consequences for a range of communities, including LGBTQ communities, particularly those who rely on government-funded services and programs to live and survive,” said Ashe McGovern, PRPCP’s Legislative and Policy Director. “This guidance essentially requires all federal agencies to incorporate the Department of Justice’s flawed interpretation of religious liberty law when considering new rules, programs, or guidance, and will undoubtedly lead to discrimination and denial of services, by granting legal impunity to organizations and programs that discriminate with taxpayer funds.”

PRPCP is also concerned that the regulation oversteps the boundaries of DOJ’s power, by improperly encroaching onto the judiciary’s duty to interpret important and sensitive questions regarding the meaning and scope of religious liberty. RFRA was passed by Congress in 1993 as an effort to support and protect religious minorities who experience discrimination, and to ensure that courts carefully balance religious liberty rights with other fundamental rights to equality and justice. “The DOJ has decided to put its thumb down on a scale that Congress carefully designed by enacting RFRA, and that courts have since interpreted as such, in a way that disregards the fundamental rights of those experiencing religious-based discrimination,” says McGovern.

The DOJ’s misinterpretation of RFRA and religious liberty law generally is likely to decrease rather than increase religious plurality. Inappropriately-broad exemptions run the risk of allowing religious objectors to become religious enforcers, permitting employers, health care providers, landlords, and service providers to impose their religious views on others who do not share them. “PRPCP is especially wary that complex questions regarding religious freedom and its limits are being made by cabinet members that appear to oppose the separation of church and state, and have supported discrimination against religious minorities,” said Elizabeth Reiner Platt, Director of the PRPCP. “Jeff Sessions has long sought to narrow the reach of the Establishment Clause, even suggesting in 2016 that states could establish an official religion. He has been an adamant supporter of the President’s anti-Muslim travel ban. This raises questions about his commitment to true religious freedom and plurality.”

“Ultimately,” McGovern says, “the DOJ’s guidance not only enables what advocates are calling a ‘License to Discriminate’ against LGBTQ communities, although that intent is clear. This guidance is also an attack on our Constitution, and the careful balance it strikes between religious liberty and other fundamental rights to equality and justice.”

Access a .pdf of this statement here: http://tinyurl.com/PRPCP-Release-DOJ-10-6

Learn more about PRPCP’s staff here: http://tinyurl.com/PRPCP-Staff

For more information on the PRPCP, visit our website: http://tinyurl.com/PRPCP-Columbia