Freedom Of . . . /Freedom From . . .

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I have yet to see a clear analysis of the First Amendment implications of the controversy over health insurance coverage of contraceptives, so here is my attempt.

Many of us were required to memorize the five freedoms protected under the First Amendment: religion, speech, the press, assembly, and the right to petition for redress of grievances. But to say the First Amendment protects “freedom of religion” is an oversimplification. It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The second part, called the free exercise clause, is that which says that government can't prevent you from engaging in any legal behavior motivated by religion. It is the basis for the claim that the Constitution guarantees freedom of religion. But the first part, the establishment clause, says that the government can't force you to engage in any religious behavior, or compel you to support a religious institution, such as spending your tax dollars to subsidize religious schools. This is your freedom from religion.

The Catholic bishops, supported by members of the Elephant Party, object to a portion of the Affordable Care Act which requires employers to include contraceptive coverage in the health insurance plans they offer their employees. The Catholic church employs people not only in churches, but also in secular institutions, such as hospitals and universities, that it owns. The bishops argue that their religion not only compels them not to use contraceptives themselves, but also to actively prevent others from sinning by using contraceptives. Forcing them to provide women with contraceptives prevents them from exercising their religious beliefs, and is presumably the basis of the Elephant claim that the Obama administration is waging a “war on religion.”

Note that Obama's compromise plan requiring the health insurance companies to provide “free” contraceptive coverage does not overcome this objection. The bishops know that health insurance companies never do anything free of charge, and that the employer will pay indirectly for any contraceptives that are used.

The employees whose contraceptive coverage is threatened see the bishops' position as a violation of the establishment clause. If the government allows the Catholic church to withhold contraceptive coverage, then the government is requiring them either to abide by religious beliefs that they do not share, or spend a substantial sum of their own money to avoid this form of coercion.

It doesn't matter whether the employees are Catholics or not. There is no reason to assume that young Catholic women share the beliefs of the elderly men who dictate church policy; in fact, surveys show there is every reason to believe they don't. Part of women's objection to the bishops' position is the suspicion that they are trying to use the government to enforce a policy that they've been unable to convince their members to accept through persuasion.

So there is a conflict between the two parts of the First Amendment statement about religion. If the bishops are allowed to freely exercise their religious beliefs, they interfere with their employees' freedom from religion.

Does this remind anyone of John Stuart Mill's essay On Liberty (1959)? Mill argues that people should be free to do whatever they want, provided they don't interfere with the rights of others. As the cliché states, your right to swing your fist ends at the tip of my nose. How would Mill balance the religious liberty of those who wish to practice their religion with the rights of those with whom that practice interferes?

In this case, the bishops' free exercise claim interferes with an important right of their employees, the right to control their family size. This right has been affirmed by Supreme Court in Griswold v. Connecticut (1965), where they ruled that a state law prohibiting the sale of contraceptives violates the “right to marital privacy.” It should also be noted that contraceptives are prescribed for some women for other health reasons in addition to or instead of birth control.

In view of the importance of people's right to contraception and health care, it's my opinion that the establishment clause trumps the free exercise clause in this case. Obama's “accommodation,” while it may be politically expedient, failed to educate the public about the constitutional principles involved in the controversy.

Of course, we should be careful when applying Mill's analysis not to exaggerate the rights of those wanting to protect their freedom from religion. To interfere with people's religious liberty, they must threaten others with concrete and substantial harm. A non-believer can't insist that religious advertisements be removed merely because he finds them “objectionable,” any more than a believer can insist that pornography be banned for the same reason.

As Lawrence O'Donnell has pointed out, this controversy would not exist if we had single payer health care in this country. Why should any employer be allowed to control the health care coverage of its employees? The Elephants have inadvertantly emphasized this point when Senator Roy Blunt (R-MO) introduced a truly outrageous bill by that would give any employer or insurance company the right to withhold any type of medical coverage merely because that “corporate person” decided that the coverage violates his or her “religious beliefs or moral convictions.” John Stuart Mill would be spinning in his grave.