New Federal Rules for Health Coverage of Birth Control Raise Questions

Douglas Laycock

February 3, 2012

The Obama administration recently rolled out new rules requiring certain faith-based employers — such as religious charities, hospitals and universities — to include contraceptives, sterilization and other family-planning services in their health care coverage.

The new regulations have provoked outrage among some religious organizations, most notably the Catholic Church, which views the rules as a violation of its religious liberty.

Are the new rules regarding healthcare coverage of contraceptives legal? Or do they violate religious organizations' First Amendment guarantee of religious liberty?

University of Virginia School of Law professor Douglas Laycock is one of the nation's leading experts in the law of religious liberty and in 2011 successfully argued the most important religious liberty case before the U.S. Supreme Court in recent years. He answers:

"Requiring Catholic institutions to provide contraception is a profound violation of their religious liberty. The Catholic teaching on contraception may be incomprehensible to many Americans, but it is very deeply felt by the leaders of these institutions and by the bishops who are responsible for these institutions. The required coverage includes the morning-after pill and the week-after pill, drugs that in the Catholic view cause abortions. So the bishops believe they are being asked to pay for the murder of human beings.

"Most obviously, these requirements violate the Religious Freedom Restoration Act, which protects against federally imposed burdens on the free exercise of religion.

"The constitutional argument is more complex, but I think these requirements also violate the Free Exercise Clause. On that issue, there is a threshold question of whether the law that burdens religion is neutral and generally applicable. I am not an expert on the health care act, but it appears to contain many exemptions, both in the text of the statute and in administrative waivers. Tens of millions of Americans work for employers who are not required provide health insurance or are not required to provide full coverage. The government cannot grant these exceptions for various economic and administrative reasons and then refuse to grant an exception needed for religious reasons. And allowing so many exceptions belies the government's claim that there is a compelling interest in providing contraception for everyone — even for those who enlist to do the work of the church. Those who work for religious institutions are in no position to complain that the institution is run by religious rules."

Is It Legal? is an occasional feature in which UVA law professors weigh in on legal aspects of current events.

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