November 2011 Church & State | People & Events

Americans United has urged the Obama administration not to broaden a proposed exemption for religious groups from a new mandate requiring private employers to cover contraceptives.

In a Sept. 30 comment submitted to the Centers for Medicare & Medicaid Services at the Department of Health and Human Services, AU Legislative Director Maggie Garrett asserted that giving religious groups exemptions that are overly broad would restrict the rights of others.

The issue has come up because the Obama administration is planning to require private employers to provide an array of preventative services, including contraception, as part of their insurance programs under the new health care law.

Nonprofit organizations that exist to advance religion and that primarily employ and serve people who share the organization’s tenets would be exempt from the rule.

However, the Catholic hierarchy, the Religious Right and their allies have balked at this proposed policy and are demanding that it be widened.

AU says the Obama administration’s exemption should not be broadened.

“Expansion of the exemption,” observes AU’s comment, “would further increase the number of women who would be denied access to contraceptives and lessen any connection the exemption has to easing any potential religious burden. Accordingly, the administration should reject arguments urging expansion of this exemption.”

The comment notes that two federal courts have already upheld two limited exemptions for religious groups that are similar in scope to the one proposed by the Obama administration. In light of those decisions, says AU, it’s both unnecessary and unwise to conform to the conservative religious groups’ demands.

“To the contrary, more expansive exemptions are actually more likely to violate the Constitution,” observes the AU comment. “Although the government may offer religious accommodations even where it is not required to do so by the Constitution, its ability to provide religious accommodations is not unlimited.”

The comment adds that requiring contraceptive coverage is legal because individual employees retain the right to accept or deny it.

“It is the individual employees who will make the independent private choice whether to avail themselves of prescription contraception as one of the many services under the group insurance plan,” wrote Garrett. “The intervening private choice that an employee makes breaks the circuit between the employer and any utilization of contraception, thereby vitiating any ‘burden’ on the employer.

“In fact, under this Proposed Rule an employer may even formally communicate that it disapproves of the usage of contraceptives, whether to the public or to the employees themselves,” Garrett continued. “In the end, the provision of a comprehensive set of healthcare benefits is really no different than the provision of a paycheck; employees are free to utilize both kinds of benefits in any manner that they wish, and the employer cannot reasonably be perceived to support or endorse any particular use thereof.”