Pitting Rights against Rights: Religious Freedom and Birth Control

By Daisy Ni (PO ’21)

For the past few years under the Affordable Care Act, employers were required to provide birth control coverage in the health insurance plans they offered employees. Last Friday, however, the Trump administration rescinded that regulation as announced by the Department of Health and Human Services; starting immediately, employers can now deny contraceptive care coverage on the basis of religion or moral convictions. While religious groups support the change, the legal basis for the rollback brings up several constitutional questions.

The primary purpose of the original birth control mandate was to remove cost as a barrier for women seeking birth control, allowing more than 55 million women to have access to birth control without co-payments. According to the National Women’s Law Center, the mandate saved women an estimated $1.4 billion on birth control pills in 2013 alone. Now, hundreds of thousands could lose benefits and coverage.

Religious groups have applauded the Trump administration’s decision, having argued that the Obama-era policy infringes upon the First Amendment by forcing them to comply with rules conflicting with their religious beliefs. However, the Trump rollback faces constitutional and legal battles of its own. By deferring objection rights to religion-based claims, the rollback may be violating the Establishment Clause, which bars government action from “respecting an establishment of religion.” The proposed policy would require individuals to bear the burdens of religions to which they do not belong, implicitly granting legitimacy to the authority of religion over that of other civil liberties. Furthermore, the policy makes a gender-based distinction, targeting women especially by reinstating the barrier to birth control, a historically female form of contraceptives. Thus, the new policy could be in violation of the numerous provisions in place to counter gender discrimination; this includes both the equal protection clauses as implicit in the 5th Amendment and 14th amendment as well as the Civil Rights Act, which prohibits discrimination against women based on sex or the capacity to be pregnant.

The rescindment of birth control is accompanied, and indeed justified in part by a government-wide legal guidelines on religious freedom issued by Attorney General Jeff Sessions on the same day. Sessions based his statements largely upon a reinterpretation of the Religious Freedom Restoration Act passed by Congress in 1993. According to the Justice Department, the document represents the reaffirmation of existing doctrines and statutes instead of initiating new regulations and rights of their own. However, even the reinstatements are generally only loosely based on precedents, using previous judicial protections and legislation to grant greater deference to religious-liberty claims.

For example, Sessions states that the government cannot second-guess the “reasonableness of a religious belief,” meaning that employers can deny contraceptive coverage, positions, or any service to workers even if their justification is not formally part of the employer’s religious doctrine. Proponents of Sessions’ guidelines derive its authority from Thomas v. Review Board, in which the Court held that “religious beliefs need not be acceptable, logical consistent, or comprehensive to others in order to merit First Amendment protection.” Using religious beliefs to claim First Amendment protection for oneself, however, is completely separate from using them to impose upon the rights of a third party. Sessions’ guidelines thus cannot be seen merely as a reiteration of past precedents—it extends and expands upon them, providing as the legal foundation for concrete policies that have wide-reaching impacts such as the rollbacks on birth control.

The Trump administration, and administrations before it who implemented similar measures, relied on the principle that the right to religious liberty superseded other constitutional rights. This assumption, however, has been challenged before. In Jacobson v. Massachusetts, the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. As a result, it demonstrated that the freedom of the individual, especially in the context of religion, must sometimes be subordinated for the advancement of the common welfare. Thus, contrary to the suggestions of the Trump administration religious liberty is not always the preeminent principle when deciding policy. This determination undermines the central justification of the Trump administration that the birth control mandate was unconstitutional—contraceptives can be argued to advance the public health of the country by allowing women to have access to reproductive health care.

Trump’s rollback introduces a new question beyond policies based on religious liberty: the policy allows employers to claim exemptions from contraceptive coverage on the grounds of “sincerely held moral convictions” in addition to religious beliefs. The idea of “moral convictions” introduces a new dimension that unlike religious beliefs, cannot claim protection under the Constitution. Perhaps Sessions merely meant his words as an extension and clarification of “religious beliefs,” but their ambiguity opens doors to a large variety of potential misuse and abuse.

In short, the Trump administration not only promoted religious freedom, but has done so on such a broad extent as to surpass the protection on basis of all other civil liberties. Indeed, there is a pertinent and real worry that the administration’s interpretation of religious liberty law will be used as a basis potentially infringe on the rights of other groups such as the LGBT+ community and women—in fact, some claim that the administration’s interpretation of religious freedom almost seems like a shield for other discriminatory tactics. Religious freedom is, without a doubt, a fundamental right of Americans; these recent policy changes, however, have reignited the debate of relative rights when there is a concern that religious liberty is jeopardizing any rights of others.

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