This summer the District of Columbia City Council attempted to force District employers to provide health insurance coverage for contraceptives and certain abortifacients. Understandably, Catholic leaders asked that the customary conscience clause be inserted in the law, exempting those with religious objections. Angrily waving a picture of the pope at his audience—including the Most Rev. William Lori, auxiliary bishop of Washington, in the front row—D.C. Council Member Jim Graham declared that he had “spent years…fighting Church dogma” and railed against “surrendering decisions on public health matters to the Church.” Cowed by Graham’s tirade, the council passed the measure unanimously— without the conscience exemption.
After Congress threatened to intervene, D.C. Mayor Anthony Williams pocket-vetoed the bill. Nonetheless, the incident highlights an increasingly vexing problem for religious organizations: the lack of legal protection for rights of conscience in the provision of health care.
The traditional Christian injunction to care for the sick will always include stopping by the side of a road to help an injured stranger. But for this country’s vast network of Christian hospitals and social service organizations, to be a good Samaritan these days also means adapting to technological change and managed care, all while remaining faithful to religious beliefs in an increasingly unfriendly environment.
Take the issue of contraception. Right now Planned Parenthood is spearheading a major campaign to require employee health plans to provide full coverage for contraceptives, including some that induce abortions. It has filed a federal lawsuit alleging that employers who do not cover prescription contraceptives violate sex discrimination laws and is leading a nationwide legislative effort to mandate contraceptive coverage. Thirteen states now have laws requiring employers to provide such coverage, and another 21 have similar bills in the works.
For Catholic employers—say, the local hospital, or Catholic Charities, or the Little Sisters of the Poor—funding such practices clearly violates their religious beliefs. Just as the D.C. Catholic AIDS Network bears witness to Catholic moral teaching in its service to AIDS victims, so it also bears witness to Catholic moral teaching in its refusal to pay for contraception and abortion. And surely the archdiocese of Washington cannot effectively promote Catholic teaching about human sexuality on the one hand while paying for its employees’ contraceptives and abortifacients on the other. If religious liberty means anything, it means that government has no business compelling these institutions to act against the most fundamental beliefs of their faith.
One solution is to insert conscience clauses into contraceptive coverage laws, exempting employers with religious objections. Our laws are chock-full of such reasonable accommodations of religious belief, and they fall well within the confines of the Establishment Clause. To take one example, abortion conscience clauses have been widespread since shortly after the Roe v. Wade decision, when Congress and most state legislatures passed laws protecting health-care providers from being forced to perform abortions contrary to their religious or moral beliefs.
Indeed, many contraceptive coverage laws attempt to include such exemptions. Unfortunately, Planned Parenthood and its allies view conscience exemptions as “loopholes” to be resisted, and as a result these exemptions are often narrowly drawn so as to exclude most religious employers. In California, for instance, Sacramento Catholic Charities has recently filed suit, challenging that state’s new law requiring employers to fund insurance coverage for contraceptives. The suit alleges that the state’s conscience exemption is drawn too restrictively, defining “religious institution” so as to intentionally exclude Catholic hospitals and social service organizations.
Current free-exercise jurisprudence supports this type of challenge. Under the Supreme Court’s decisions in Employment Division v. Smith and Church of the Lukumi Babalu Aye v. City of Hialeah, individuals must comply with neutral, generally applicable laws even if they require conduct that the person’s religion prohibits, but laws that are not neutral or not generally applicable must meet a more exacting, strict scrutiny test. Under strict scrutiny, if a government action substantially burdens the free exercise of religion—as mandatory contraceptive coverage laws surely do—it must be the least restrictive means to achieve a compelling state interest. The California law, for instance, is not generally applicable because it includes an exemption scheme; it isn’t neutral among religions because it exempts certain religious organizations but not others. Courts will thus apply the strict scrutiny standard, which California fails: It could achieve its goals in a manner less restrictive to religion by simply passing a broader conscience clause.
Narrow conscience clauses raise other free-exercise concerns as well. For instance, the California conscience exemption requires the state to determine whether an institution’s purpose is the “inculcation of religious values” and whether it employs and serves primarily people who “share [its] religious tenets.” Not only does this definition exclude most religious hospitals and social service organizations, it also hopelessly entangles the government in religious determinations. Would the state require Catholic Charities to submit records of whom it served at its soup kitchen before granting an exemption? Which bureaucrat would determine whether a religious organization really meant it when claiming that its purpose was to inculcate religious values?
As the experiences in California and D.C. show, health-care conscience clauses are often crafted too narrowly or not at all. As it stands now, state and federal law contains a patchwork of such clauses that offer varying levels of protection for health-care providers against efforts to force them to act contrary to their religious beliefs. A federal Health-Care Freedom of Conscience Act would remedy this situation by providing comprehensive conscience protection for religious health-care providers in a broad array of circumstances. Such a proposal was placed on the House calendar last term and should be made a priority during the next session of Congress.
Our culture’s most controversial moral questions arise in the health-care context, from abortion, contraception, and in vitro fertilization to euthanasia and the withdrawal of life support. One side of these debates is lobbying for an unfair advantage: the right to force religious institutions serving in this field to act against the most fundamental beliefs of their faith. Without increased protection for rights of conscience in health care, such offenses against religious liberty will only increase.