Obama Rule Respects Religious Diversity and Employees' Dignity

About Katherine Franke:

Katherine Franke is Isidor and Seville Sulzbacher Professor of Law and director of the Center for Gender & Sexuality Law at Columbia Law School.

About Elizabeth Sepper:

Elizabeth Sepper is Center for Reproductive Rights Fellow at Columbia Law School.

The better way to frame the question is: Should employers with a corporate relationship to organized religion be permitted to avoid constitutionally protected health measures that every other employer must follow? Of course not.

Setting aside the politically charged question of contraception for a moment, would this issue be so difficult if we were considering a demand by a Christian Scientist-owned construction company to be exempted from state-mandated health and safety regulations for its employees because it prefers to rely on prayer? Of course not.

[Catholic Birth Control Fight About Healthcare, Not Just Religion.]

Religiously owned or affiliated organizations that employ people of all faiths and backgrounds ought to play by the same rules as every other employer, including being subject to health, safety, and labor regulations. They provide goods and services to the public and are the beneficiaries of ample taxpayer funded grants and subsidies. Their status as religiously owned or affiliated shouldn't allow them to pick and choose which public regulations they must comply with.

The Obama administration's new rule requiring employers—except for houses of worship and a narrow array of religious organizations—to cover contraception is smart health policy. What's more, it strikes a balance that respects both religious diversity and employees' dignity and liberty.

Opponents of contraceptive coverage—led by the U.S. Conference of Catholic Bishops--want to convince us that a religious exemption must exempt almost all religiously affiliated employers from the new healthcare law's contraception rules. In their view, religiously affiliated institutions should be permitted to have their religious principles override valid legal regulations to which they have an objection. Time and again, however, U.S. courts have found that religiously affiliated employers cannot run their businesses in ways that contravene larger social norms about fairness, health, safety and equality. For instance, they cannot pay their male employees more than their female employees because their faith instructs that men should be the breadwinners in the family, and they must respect the religious beliefs of their employees even if they conflict with those of the employer's religion.

[Obamacare Birth Control Mandate Tramples Religious Liberty.]

The Catholic Bishops' effort to overturn the Obama administration regulation on insurance coverage for contraception turns religious freedom on its head. Conscience no longer belongs to the individual employee—it becomes the sole province of administrators of large healthcare systems, provosts of universities, and the bishops themselves, and is used as a blanket to cover up the religious, and other, beliefs of employees who work for religiously affiliated employers.

What has been lost in this debate is that requiring employers to cover contraception protects the religious freedom of individual Americans. The new contraceptive rule permits each employee to live out his or her conception of a moral life. It allows no employer to dictate an employee's beliefs. (It's important to note that healthcare coverage for contraception is something that concerns both male and female employees.)

The new contraception coverage rule will improve employees' access to essential contraceptive care. It will respect women's and men's decisions about their reproductive health. It will also lift a substantial financial burden from women and their families. The average woman uses contraceptives for 30 years of her life at a cost of $30 to $50 per month.

[Rick Newman: Obama's Common-Sense Deficit.]

But it is not anti-religious or anti-Catholic. Religious freedom will not rise or fall on the back of insurance coverage for contraceptives. A majority of Americans of all faiths, including a majority of Catholics, supports extending coverage. Twenty-eight states already require contraceptive coverage. Many religious employers offer it as part of their insurance plans. And for the vast majority of Catholics who depend on contraceptives to avoid unintended pregnancy, the insurance mandate is anything but anti-Catholic.

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