“Conscience Amendment” Defeated in Senate

By Sushila Rao

Voting mostly along party lines, the Senate today voted to defeat the so-called Conscience Amendment, which embodied the Senate Republicans’ response to the 2010 Patient Protection and Affordable Care Act’s requirement that group health plans must include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”  The Obama Administration later offered an “accommodation” for religious institutions whereby, in case a religious institution decides to opt-out and declines to provide coverage that includes contraceptive services, the insurance company would have to contact the concerned woman directly and offer her contraceptive coverage free of charge.”  This compromise has been largely rejected as inadequate by conservatives.

Many Senate Republicans have tried to couch their opposition to the policy as premised on the First Amendment right of employers, such as Catholic hospitals, to free exercise of religion, rather than their aversion to a woman’s ability to access birth control.  Proposed by Senator Roy Blunt (R-Mo.), the Conscience Amendment was attached to a highway bill,  and would allow employers to opt out of a new federal health-care mandate for their employees if they have religious objections.  Federal lawsuits have also been filed challenging the constitutionality of the policy on the anvil of the Free Exercise Clause of the First Amendment.

However, under the controlling Supreme Court precedent, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the First Amendment argument is a non-starter.  InSmith, Justice Scalia—a devout Catholic—decreed that religious liberty is an insufficient ground for being exempt from generally applicable laws.  Thus, the  State of Oregon could lawfully deny unemployment benefits to employees fired for the use of a prohibited drug—peyote—even as part of a religious ritual.  To hold otherwise would be “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”  The only avenue available to groups desirous of a religious exemption is, therefore, to lobby their elected representatives for one.  Such a rule requiring political vetting of exemptions certainly disadvantages unpopular or impecunious minorities, but was deemed preferable by the Court to the relative “anarchy” that would ensue by mandating religious exemptions for everyone who wants one.

Furthermore, given the above-mentioned accommodation offered by the Obama Administration, it is hard to see how the policy would amount to a prohibited burden on religion under the terms of the 1993 Religious Freedom Restoration Act (RFRA), which still applies to the Federal Government.  Section 3 (b) of the RFRA provides that government may substantially burden the exercise of religion only if it can demonstrate that the burden furthers a compelling governmental interest (in this case, women’s health) and is the least restrictive means of furthering that interest.  Given that employers can opt-out of the scheme, leaving it incumbent on the insurance company to ensure the provision of contraceptives to female employees, the policy arguably does not substantially burden the employer’s religious beliefs.

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