At the heart of President Obama's announcement last week on the contraceptive coverage mandate are two goals: ensuring that religious organizations will not have to pay for or provide coverage for services that are objectionable to them and that employees of objecting religious organizations will have access to these benefits on the same basis as other employees.
These are the right goals. As the administration moves forward to implement them, it should carefully consider legitimate free exercise concerns and distinguish them from broader grievances about the contraceptive mandate and the Affordable Care Act as a whole.
In his Feb. 10 remarks, President Obama offered a specific proposal about how to reach the goals of honoring religious objections and access to contraceptive coverage. Drawing on the provisions of certain state laws, the president proposed requiring insurers to provide these benefits to employees of objecting religious organizations via insurance contracts that are separate from the contracts between the insurers and objecting religious employers, with no referrals by these employers. The aim is to take objecting religious organizations out of the equation, while ensuring employee access to important health benefits. Many Catholics and other people of faith have said this proposal works well for them, and it makes good sense to me.
Since the announcement, however, some other Catholics and religious people have said even this accommodation would substantially burden the free exercise of their institutions. Some religious employers would like, for example, to be able to purchase insurance from insurers that do not offer contraceptive coverage so that none of their money supports such coverage in even the most remote way. Likewise, some nonprofit religious insurers have said they would object to a requirement that forced them to provide contraceptive coverage. The administration should address legitimate concerns like these in the upcoming rulemaking process. It has already pledged that religious employers with self-insured group health plans will not be required to pay for or provide coverage for services to which they object, while employees of those organizations will be guaranteed such coverage by other means. The solution the administration formulates for self-insured health plans may suggest fixes for these other cases as well.
Why should the administration address concerns like these? As UCLA Law Professor Eugene Volokh recently noted, free exercise burdens turn on the subjective understanding of the religious practitioner or body. One person or body's understanding of their faith can differ from another's. It is not the government's job to try to determine what is the "right" understanding of a faith; instead, its job is to assess whether the faith practice is sincere and the burden on it is substantial. Having already demonstrated an interest in accommodating spiritual obligations, the administration can and should consider different understandings of those obligations.
Another key part of the administration's proposed rule will be minimizing differences between what its current rule calls "non-exempted" religious employers (such as religious hospitals, universities and social ministries) and "exempted" religious employers (basically, churches and other houses of worship). The ideal approach -- rather than unnecessarily carving out distinct regulatory regimes for two different sorts of employers -- is simply to include a single modified exemption, while still ensuring that employees of exempted organizations could access contraceptive coverage. The administration chose not to do this, but in his remarks last week President Obama treated these two sets of organizations the same way and announced a policy that has the practical effect of broadening the exemption. In other words, the current exemption is a faulty one that should not be extended to other areas of federal law; but, with care, the administration should be able to address the problem here in a workable way.
At the same time, the Obama administration should distinguish between legitimate religious liberty concerns about the exemption and broader grievances about the contraceptive mandate and the Affordable Care Act as a whole. For example, those who say the only way to remedy the free exercise problem is to scrap the contraceptive mandate -- or the entire Affordable Care Act -- are wrong. They are also badly mistaken when they suggest it somehow violates the free exercise rights of a religiously affiliated hospital, social service agency or university for an insurer or the government to offer their employees contraceptive coverage. Further, there is certainly no free exercise obligation to exempt all employers from an obligation to provide contraceptive coverage due to their CEOs' personal religious convictions.
There's a balance to be struck here because this debate involves more than simply the interests of religious objectors. In 2005 a unanimous U.S. Supreme Court said that when considering free exercise accommodations, "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." This constitutional principle deserves attention here, too. Also, some legal scholars have suggested employees of objecting religious employers may have Religious Freedom Restoration Act claims of their own if they are denied these federal benefits. In any case, a policy that would operate to allow employers' religious convictions to deny hundreds of thousands of Americans federal benefits would be disturbing. It's also worth noting that expanding contraceptive coverage will help greatly to reduce the number of abortions, a goal with strong support in both the pro-choice and pro-life ranks.
If all of this sounds complicated, that's because it is. Indeed, my hope is this episode will prompt us to re-consider our employer-based health insurance system. It is right to honor the religious objections of faith-based employers, but it is also right to ask why we retain a system where the health coverage employees receive may be limited by those objections.
While the employer-based system endures, however, we must confront the dilemmas it presents. President Obama's commitment to the twin goals of honoring objections and access and to opening a new rulemaking process provides the framework necessary to address these issues in constructive ways. The administration should continue to fast-track this policy-making process, even though obligations on religious institutions will not kick in until August 2013. It's in everyone's interest to try to find an agreeable solution to this problem. No one can be certain how lawsuits and legislation will fare, and no one can safely predict the outcome of the next election.
These matters are complex, but our debate over them need not be caustic. May cool heads and fair-mindedness prevail as we move forward.