The Affordable Care Act (ACA) requires every employer with more than fifty full-time employees to provide health insurance that includes coverage for “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Those employers with religiously based moral objections to these medical practices bristle at this edict, known familiarly as the HHS mandate, since it requires them to financially support services that contravene their religious principles. There is a very narrow religious exemption, but the criteria are so strict most religious schools, hospitals, and charities do not qualify. There is absolutely no conscience protection for private business owners.
All of the options for those who are caught in this moral conundrum are less than ideal. One can concede that this is the law of the land and comply, though with vigorous protestations. Of the available courses of actions, this is by far the easiest. The business owner may rationalize his compliance by claiming his cooperation with the evil of contraception, sterilization, and abortion-inducing drugs is remote at best. This decision allows him to stay in business and provide health insurance for his employees, both good intentions.
If one looks at this through the narrow lens of moral theoretical analysis, this appears to be a reasonable option. But when one places it in the reality of today’s cultural climate, it is clearly shortsighted. We live under a growing tyranny of secularism that seeks to quash all religious references in the public square. The language of the day now speaks of freedom of worship instead of freedom of religious expression as is written in the Constitution. We are free to conduct our religious rites behind closed doors, but we must not allow any evidence of that religion to taint our interactions with the rest of society. Failure to mount a challenge to this current unjust mandate is only a temporizing measure. Emboldened by our meekness, the secularists will continue to chip away at our rights to express religion in every facet of our lives. We already see the continued fight in the recent lawsuit of Means v. USCCB that challenges the rights of Catholic hospitals to operate under the directives based on Catholic medical ethics.
Alternatively, the business owner can drop insurance coverage for employees and pay hefty fines. For many businesses, this option is economically non-viable and would cost both the business owner and his employees their livelihoods as well as their health insurance. In effect, this would economically marginalize religious entrepreneurs. Any business owner who wishes to operate a business in accord with his religious convictions will be hampered by the expectation that his principles be set aside to accommodate the secular norm. This is already evident in the wedding industry as florists, bakers, photographers and venue owners who oppose the redefinition of marriage to include same-sex couples are being forced to participate in wedding ceremonies for gay and lesbian couples if they wish to stay in business.
The final alternative is to wage a legal battle on the grounds that the HHS mandate is a violation of our constitutional rights to the free exercise of religion, as guaranteed by the First Amendment as well as a violation of the Religious Freedom Restoration Act of 1993(RFRA). Embarking on such a legal struggle is a daunting prospect. It will require time, money, and a willingness to stand before a jeering secular culture and profess a conviction to religious principles. Yet, the HHS mandate is exactly the kind of infringement on religious freedom that cannot be allowed to stand and demands a legal response.
Two cases, Sebelius v Hobby Lobby and Conestoga Wood Specialties Corp. v Sebelius, challenging the constitutionality of the HHS mandate await a hearing before the Supreme Court of the United States. Under RFRA, the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.
From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder. Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.
Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.
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Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.
In choosing whether to fight or comply with the HHS mandate, it is necessary to consider both immediate and long-term consequences of each course of action. Compliance, even if accompanied by some form of symbolic protest, may meet the strict definition of individual virtue, but it does nothing to defend against future assaults on the right to religious expression. Permitting the government to assert it has a compelling interest in the public’s access to elective medical procedures and such an interest trumps religious liberty sets the bar far too low. For the sake of religious freedom now and in the future we need business owners willing to look beyond themselves and take a stand against the injustice of HHS mandate. Technical compliance with the moral law is not enough. We need heroic virtue.