The Witherspoon Institute’s Task Force on Conscience Protection recently reviewed and will submit comments on the “interim final rule” jointly issued by the Departments of Health and Human Services, Labor, and Treasury on “preventive services” under the Patient Protection and Affordable Care Act. We present our findings here. First, we treat the mandate that all health plans provide both contraceptives and certain abortifacients. Second, we comment upon the narrow religious freedom exemption in the rule. Third, we address the mandate in light of current social circumstances concerning sexual freedom and sexual restraint.
1. Mandate for Abortion and Contraception
The jointly issued “interim final rule” regarding “preventive health services” requires nearly all private health plans to include coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity,” without co-pays or other cost-sharing— no matter whether the insurer, the employer or other plan sponsor, or even the woman herself objects to such coverage on the basis of religious or moral principles. Women may not receive, and insurers, employers and other plan sponsors may not provide, health coverage that is exclusive of such “services.” Never before has the federal government required private health plans to include such coverage.
Among the FDA approved “contraceptive measures” are drugs that, under certain circumstances, terminate the life of a human being at the embryonic stage of development. At least two of the drugs approved by the FDA under the rubric of “contraception” so function in some cases. They are more accurately labeled abortifacients. As a matter of basic embryology, the life of the human organism begins with the fusion of gametes—egg and sperm. And according to FDA labeling, “Plan B emergency contraception” (levonorgestrel, also known as “the morning-after pill”)—“may inhibit implantation by altering the endometrium.” In other words, Plan B may make it impossible for the newly conceived human being to embed herself into her mother’s uterine lining—a necessary condition of life support for the unborn child. In such cases, the embryo is destroyed prior to implantation.
Another FDA-approved form of “contraception” known as “Ella” (ulipristal, or the “5 day-after pill”), seems to pose an even greater danger to newly-conceived or even newly-implanted embryonic human beings. Ella is a “selective progesterone receptor modulator.” It may function pre-implantation by rendering the endometrium inhospitable to implantation for a newly-conceived embryo (like Plan B); it may also function post-implantation by depriving a living embryo of progesterone or by destroying the maternal component of the placenta. In both of these manners, Ella functions as an early abortifacient. Indeed, the FDA labeling for Ella states that the drug is contraindicated during pregnancy, citing animal studies showing its capacity to terminate a pregnancy. Furthermore, there is nothing to prevent the off-label prescription of Ella (or its purchase, should it become available, like Plan B, for sale over-the-counter) for purposes of terminating a known pregnancy. In short, the new “preventive services” mandate includes coverage for drugs used to kill an unborn child both before and after implantation. Many institutions and individuals (religious and secular) rightly condemn such killing as a grave injustice.
2. The Religious Exemption
The rule includes a very narrow religious exemption. Houses of worship are almost certainly protected, but all other religious ministries and institutions are almost certainly not. The exemption covers only: a “religious employer” that has the “inculcation of religious values” as its purpose; “primarily employs persons who share its religious tenets”; and primarily “serves persons who share its religious tenets.” Further, the employer must qualify as a church organization under two narrow provisions of the tax code. Religious institutions such as colleges and universities, as well as hospitals and charitable institutions that employ and serve the public (versus only co-believers) will be ineligible. Individuals, and religiously affiliated health insurers are also outside of the scope of the exemption.
Others have made the case to HHS that the religious exemption in the proposed regulations is unprecedented in its narrowness. Indeed, it is. Though copied largely from state laws requiring insurance plans to include prescription contraception, the proposed federal mandate is much more sweeping than any comparable state program. When you add to this picture that the new proposal would include “contraceptives” that act as abortifacients, then the radical nature of this looming invasion of religious liberty finally comes into full view.
The U.S. Catholic bishops—sponsors of the nation’s largest private charities—correctly observe that the new mandate “poses an unprecedented threat to individual and institutional religious freedom.” We would add that not even a Catholic parish’s grade school would be exempt from the new mandate to carry insurance that pays for some early abortions. These schools do not always “primarily serve persons who share [the employing religion’s] tenets.” Particularly in urban cores, Catholic schools might enroll a majority of non-Catholic students, often children from the most vulnerable racial and socioeconomic groups. Further, Catholic schools’ “purpose,” as required by the proposed regulation, is not solely “the inculcation of religious values.” That is one purpose of a Catholic school. But the main or “primary” purpose of a Catholic school is the same as that of any other school: providing an education. Other religious institutions, universities in particular, regard it as part of the core of their mission and identity to be and act in the world as a witness and servant to others, all others, regardless of their beliefs, circumstances, or station in life. This almost always results in the employing and serving of persons who do not share the same faith as the institution’s founders. This vision of ministry and identity, under the proposed rule, would disqualify a religious institution from taking advantage of the religious exemption.
Yet throughout American history, religious institutions have been the leading private providers of charitable, educational, and medical services to the poor, always serving those they felt were the most marginalized populations of their day—whether slaves or freed slaves, new immigrants, Native Americans, prisoners, or persons with AIDS. The quality and efficiency of their care, and the compassion with which it has been delivered, are often noted. Regularly, the populations served did not share the faith of the religious institutions who took up their cause
Given their solidarity with the dispossessed, religious leaders of every denomination have, throughout American history, also effectively led a variety of human rights’ movements, including the movements for abolition of slavery, for civil rights, for campaigns to end poverty, and for justice for immigrants, the elderly, those with disability, and the unborn. The presence of religious leaders and religious institutions in the public square—and not behind the walls of their monasteries, churches or homes—is an inescapable aspect of America’s history of progress and prosperity.
The proposed exemption disregards this history by limiting its application to employers who do little (or nothing) but preach to the convinced. This, apparently, is what the authors of the new regulations intended when they adopted the stringent definition of “religious employer,” drafted by the American Civil Liberties Union (ACLU) in connection with California’s contraception mandate. This is the very same ACLU that recently urged HHS to force all Catholic hospitals to perform abortions under the guise of necessary “emergency treatment.” Recent history demonstrates that many religious employers will exit from the marketplace rather than abandon their mission to offer faithful witness in the course of providing service. Those behind the new regulations must be willing to accept this effect, and perhaps even desire it.
This is revolutionary. Never before in American history has any administration—state or federal—been so willing to force religious institutions out of business. In fact, at our founding, and for a long time thereafter, most education, healthcare, and social services were provided by the churches, not by the government. In most cases public authorities assisted the churches by some form of financial or material aid. Even when, after the Civil War, governments began more earnestly to set up their own schools and to provide some other charitable services directly, the norm remained what it had been: a productive partnership between religious and civil providers, with no preference for any religion and with coercion of no one’s conscience, all directed to the achievement of the common good. This was surely the pattern up to and beyond World War II.
In fact, it was not until the 1960s, and then largely under the influence of Supreme Court decisions imbued with a rabid secularism, that this long partnership came in for wholesale criticism. Only then did American elites begin to think of systematically privatizing religion, of shutting up faith within the walls of family, home, and church. Only in the 1960s did significant numbers of people begin to think that everything public—that is, all that is properly in the civil sphere—should be governmental.
With these proposed regulations, the Obama administration would turn back the clock, not only to this discredited intolerance, but beyond, and toward a repudiation of our whole constitutional and political tradition. The administration would restrict the public square to the government to an extent that would be anathema to the founders, and undreamt-of by any important public figure since.
3. Sexual Expression: The Elephant in the Room
It seems more than a little likely that the degree to which this administration is willing to silence or privatize religion is proportionate to its passionate commitment to the population and sexual freedom agendas of one of the administration’s closest allies, the Planned Parenthood Federation of America (“Planned Parenthood”)—the largest single abortion provider in the United States. It is Planned Parenthood that lobbied strenuously for precisely the coercive outcome represented by these proposed regulations. It is Planned Parenthood whose leadership is closely intertwined with the authors of the Institute of Medicine (IOM) report upon which these regulations are based. And it is Planned Parenthood’s former research affiliate, the Guttmacher Institute, that issued several of the studies cited in the IOM report as the basis of its false claims that easier access to birth control has reduced and will reduce our national rates of unintended pregnancies and abortions. It is also Planned Parenthood that—at a time of national economic crisis—has just received new federal dollars to replace the dollars recently taken from them by state legislatures wary of supporting such a prominent abortion provider.
It is well known that the various religious institutions sponsored by the Catholic Church do not provide contraception to their employees or their clients. The Catholic Church in the United States is also the most persistent and powerful voice against the legalization and normalization of abortion in America today. Its witness on these matters earns scorn from those “true believers” who continue to insist that abortion and contraception are the best response to high rates of nonmarital births and abortions, in the teeth of compelling evidence that both policies are associated with even higher rates of nonmarital pregnancies and abortions due to the manner in which they change the “markets” for sex and marriage. (See, Helen M. Alvaré, Abortion, Sexual Markets and the Law, in Stephen Napier, ed., Persons, Moral Worth, and Embryos: A Critical Analysis of Pro-Choice Arguments, 255, 261ff (2011)). Planned Parenthood is preeminent among such “true believers.”
With these new regulations, the administration has placed itself on the side of the Planned Parenthood worldview: an irrational commitment to unrestrained sexual expression, “insured” by easy access to contraception and abortion, no matter the cost to religious freedom or to the well-being of the adults and children involved. These regulations would enclose behind the walls of sanctuaries any and all dissenting religious voices on the matter of sexual restraint and respect for vulnerable human life. Those who today speak common sense on the matter of sexual restraint—backed by current and credible data—are the very persons and groups who would be silenced. Their reasoned arguments, and the witness of their lives, would no longer be available to those who do not already share their faith. Consequently, while religious institutions will suffer should the current “preventive” health care mandate take effect without amendment, there is a group that will arguably suffer even more: those Americans most in need of viewpoints dissenting from this new federal orthodoxy concerning human sexuality and the value of vulnerable human life.
Helen Alvaré is an associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. Gerard V. Bradley is professor of law at the University of Notre Dame Law School. O. Carter Snead is professor of law at University of Notre Dame Law School. They write on behalf of the Witherspoon Institute’s Task Force on Conscience Protection.
 “Abortifacient” is sometimes defined narrowly (and we believe misleadingly) as the termination of a developing human being’s life at some point following implantation in his or her mother’s womb (a moment which marks the beginning of pregnancy). But as noted above, all human being begin their lives prior to this point (at conception). For purposes of this comment, we use the term “abortifacient” and “abortion” to include any intervention meant to kill an embryonic human being, pre- or post-implantation.