From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What’s at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is “the assertion by private businesses and their owners of an unprecedented right to impose the owners’ religious views on workers who do not share them.”
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers’ imposing their views on contraception on employees, nobody talked about it.
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What’s actually new here is the Obama administration’s 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it’s the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it’s doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful.
Supporters of the regulation are resorting, as Jessica Valenti does at the Nation, to the slippery-slope argument: What if your boss is a Jehovah’s Witness and he doesn’t want to cover blood transfusions? Again, though, it has been legal for employers in most places to make this decision for most of American history. Ever heard of anyone going without a transfusion for this reason? The problem is wholly hypothetical.
A lot of people, especially liberals, think that contraceptive coverage was a powerful campaign issue for the Democrats last year, contrary evidence notwithstanding. If that’s right, then liberals ought to have some success in getting Congress to pass the law with an explicit override of protections for religious dissenters. Until Congress takes such action, the courts should apply the Religious Freedom Restoration Act.
Valenti also argues that opposition to the regulation “is not about religious freedom, it’s about sexism, and a fear of women’s sexuality.” It’s a free country, and people are entitled to adopt her cartoonish views of people who disagree with her. But our statutory right to act on our religious beliefs does not depend on what Valenti thinks of them. Thank — goodness.
(Ramesh Ponnuru is a Bloomberg View columnist, a visiting fellow at the American Enterprise Institute and a senior editor at National Review. Follow him on Twitter @RameshPonnuru)