Category Archives: Abortion Access

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

 

Potential Consequences of Trump’s “Religious Freedom” Executive Order

Press Advisory: Potential Consequences of Trump’s “Religious Freedom” Executive Order

Date: May 4, 2017

From: Columbia Law School, The Public Rights/Private Conscience Project (PRPCP)

Contact: Ashe McGovern | amcgovern@law.columbia.edu | 212.854.0167

Potential Consequences of Trump’s “Religious Freedom” Executive Order

President Trump is set to sign a far-reaching and constitutionally problematic executive order today. Although a draft of the final order has not yet been released, it will likely mirror, at least in part, a similar draft that was leaked earlier this year. While more detailed analysis will be necessary once the final order has been released, the leaked order raises the following issues. Specifically, the order:

Defines “people” to include for-profit corporations—even corporations that do not have an exclusively religious purpose. The order defines a “person” to be consistent with 1 U.S.C 1, which includes for-profit corporations.  This means that where the order affirms the right of “people” to act in accordance with a particular set of religious beliefs, including opposition to LGBTQ equality, it enables for-profit corporations to act in a discriminatory manner. These companies would be shielded from government intervention and enforcement of otherwise applicable laws, as long as they assert that their behavior is in keeping with a particular set of “religious beliefs.” The order also defines “religious organization” to include closely held for-profit corporations “operated for a religious purpose even if its purpose is not exclusively religious and is not controlled by or associated with a house of worship.” Thus an organization that is primarily engaged in secular activities, but claims to have some set of guiding religious principles—which the order fails to limit or define—could qualify as a religious organization. It would then be granted the protections religious organizations are given under this order.

Grants broad exemptions from federal civil rights and nondiscrimination laws to private and nonprofit organizations that are funded by the federal government to provide social services, education, healthcare, employment opportunities or other services to the general public. The order states that “persons and organizations do not forfeit their religious freedom” when contracting with the federal government in delivering services to the general public. This means that private organizations, even those that are funded by the federal government, will be shielded from claims that they have violated civil rights and nondiscrimination law as long as they claim their behavior is in accordance with a set of religious beliefs that they are free to define. This also means that the federal government will be unable to require religious grantees to provide publicly-funded services on a nondiscriminatory basis.

Enables federal contractors to impose their religious beliefs on their workers as a condition of employment. The order states that all agencies must provide exemptions to federal contractors and grantees consistent with religious exemptions found within the Civil Rights Act and Americans with Disabilities Act. These exemptions have been carefully tailored and limited by the courts, and do not currently apply to federal contractors. Applying them to federal contractors would impermissibly expand the exemptions, and allow federally-funded organizations to require that their employees follow particular religious beliefs or behaviors in order to remain employed.

Grants broad religious exemptions to federal employees acting in their official capacities as government workers, including workers that regularly interact with the public. The order requires agencies to “accommodate” the religious beliefs of federal employees, even where those beliefs conflict with their official duties as government employees. This could mean that a federal employee, who works for the Social Security Administration, for example, could refuse to process an application for a same-sex couple, a transgender person or a person of different faith, by stating that their religious beliefs prohibit them from doing so.

Directs relevant federal agencies to exempt any organization, whether religious or secular, from having to provide comprehensive reproductive services and healthcare to their workers. The order directs the Departments of Health and Human Services, Labor, and Treasury to issue an immediate interim rule that “exempts from the preventative care mandate…all persons and religious organizations that object to complying with the mandate for religious or moral reasons.” The order also directs HHS to take “appropriate actions” to ensure that “any individuals” who purchase health insurance on the individual markets, including federally facilitated and state sponsored health insurance, have the ability to purchase insurance that does not provide coverage for abortion and “does not subsidize plans that do provide such coverage.” This means that any for-profit employer can be granted a religious exemption from the requirement that they or their health plans provide contraceptive and family planning services. This would substantially broaden the Supreme Court’s holding in Burwell v. Hobby Lobby, which applied only to closely-held corporations. The order would also require state and federal exchanges to include plans that prohibit family planning services. Furthermore, it would preempt state laws that require health plans to cover birth control and abortion.

Allows federally-funded child welfare services and agencies to discriminate on any basis, including on the basis of race or religion, if doing so would “conflict with the organization’s religious beliefs.” This includes organizations that “provide federally funded child-welfare services, including promoting or providing adoption, foster, or family support services for children, or similar services.” This means that organizations that provide foster or adoptive services would be empowered to discriminate against same-sex couples, people of other faiths, unmarried people, or others whose relationships or behaviors do not conform to the organization’s particular religious beliefs.

Allows religious organizations and houses of worship to engage in political lobbying, while still maintaining their tax-exempt status. Specifically, this order would allow an organization that is speaking on a “moral or political issue from a religious perspective” to endorse or support political candidates. Currently, the tax code prohibits all 501(c)(3) organizations from endorsing or opposing political candidates. This provision would exempt religious organizations—and only religious organizations—from that mandate. The order also prohibits the Department of Treasury from imposing any tax penalty or burden to any organization that acts in accordance with beliefs that “marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy physiology or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.”

Enacts far-reaching requirements on all federal departments and agencies to promptly rescind any rulings, directives, regulations, guidance, positions, or interpretations that are inconsistent with the order. This means that directives, rulings, regulations, guidance and interpretations that do not provide expansive religious exemptions may be rescinded or withdrawn by any agency or department of the federal government. This could include already existing protections enacted under the Obama administration for LGBTQ communities, women, and people of color, in their ability to seek access to reproductive services, employment, healthcare, education or social services.

Access a .pdf of this Press Advisory here.

For more policy analyses from the PRPCP, see our Policy Page, here.

Proposed New York State Health Regulation Contains Troubling Exemption: The PRPCP Responds to a Proposal on Abortion Access

Cross-Posted on the Center for Gender & Sexuality Law Blog, and at Medium
______________________________________________

Press Release:
March 29, 2017

From:
Columbia Law School, The Public Rights Private Conscience Project

Subject:
Proposed New York State Health Regulation Contains Troubling Exemption: The Public Rights/Private Conscience Project Responds to a Proposal on Abortion Access

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

______________________________________________

A proposed New York State regulation requiring insurance plans to cover “medically necessary” abortions contains a broad religious exemption that would undermine the state’s longstanding commitment to reproductive health. The exemption—which is not required by New York’s Constitution or laws— defines the term “religious employers” to include large nonprofits and even some for-profit companies. In the face of a national movement to enact anti-LGBTQ and anti-choice religious exemptions, the regulation would set a harmful precedent by accommodating religion at the expense of other fundamental liberty and equality rights. On Monday, March 27th,  Elizabeth Reiner Platt, Director of Columbia Law School’s Public Rights/Private Conscience Project (PRPCP) submitted a comment on behalf of the PRPCP to the NYS Department of Financial Services “to express [] deep concerns regarding the regulations’ expansion of New York’s existing definition of religious employers.”

Noting that religious liberty is already robustly protected in New York, PRPCP’s comment states, “allowing an organization that operates in the public sphere to violate neutral employee health and benefit laws serves to reduce, not enhance, true religious pluralism.  This is especially true when such accommodations single out particular religious tenets, such as opposition to abortion, for special protection.”

“The proposed regulation would allow organizations to treat a medically necessary procedure overwhelmingly obtained by women differently than any other type of care,” said Elizabeth Reiner Platt. “Rather than surrender to the troubling trend of protecting particular religious beliefs at the expense of reproductive health, New York should continue to be a national leader in guaranteeing access to comprehensive health care.”

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis. PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause.

Read the full letter from the Public Rights/Private Conscience Project here:
http://tinyurl.com/PRPCP-3-27

Read the NYS Department of Financial Services Proposed Amendment here: http://www.dfs.ny.gov/insurance/r_prop/rp62a48text.pdf

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia