The Case against Using Religious Freedom to Block Birth Control Access


This week, among other over-the-top comments, Justice Antonin Scalia expressed his belief that women do not have a right to birth control. His arrogance and lack of regard for the rights of women should be causing every single woman in this country to loudly protest, but of course, a fair number of conservative women will continue to grovel and let their male leaders dictate their destinies. Given that a court in Colorado ruled against the birth control mandate recently, there is a reasonable chance this issue could end up before our highly conservative Supreme Court.

Respecting the rights and needs of women, Congress passed a law that mandates that health insurance providers cover birth control. In doing so, they did their job of avoiding the trap of respecting an establishment of religion by granting women a basic freedom without checking with each religion in the United States for their permission. They also gave every single woman full freedom to exercise her religion by either choosing whether or not to use birth control based on her particular beliefs. Ultimately, the government should be most concerned with respecting the rights of individuals and not with the beliefs of a particular branch of a religion. If they were to begin kowtowing to the preferences of a specific sect, they would indeed be establishing that religion as having more rights than other sects and taking away the rights of whole swaths of individuals, in this case telling large numbers of women that they would be denied the right to decide whether or not their religious beliefs precluded using birth control. Isn’t that what state-based religion was in Europe, a religion that denied individuals the free exercise of their beliefs?

Let’s consider what the framers of the Constitution meant when they were thinking about the role of religion in American society. Of course, they wanted individuals to be free to practice the religion they wished to follow. These men were keenly aware of history, so they knew that many of the settlers of this country arrived in the United States precisely because they were not allowed to practice their faith in their country of origin. However, these men were planning a democratic government. So, they phrased the First Amendment to say, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Considering the meaning of that phrase has been the purview of the Supreme Court, so Scalia is sending a shot across the bow, warning supporters of the Affordable Care Act (ACA) that there is a good chance the justices would not support the birth control mandate.

What of the notion that sects who oppose birth control would be forced to pay for it (especially under the Obama compromise), thus violating the clause of Congress not prohibiting the free exercise of religion? For this, we need to break down whether there is actually any additional expense to religious employers for this coverage. Under the ACA, the rampant discrimination against women that allowed insurers to charge them more than men is eliminated. Employers would actually not be charged any more to cover women’s birth control than they would be if they were not covering it. The ACA will be requiring health insurers who are providing coverage to include this in the package. It isn’t an additional expense to the insured. To remove the birth control from the array of covered services then becomes an affirmative move by these religious organizations. They are actively taking something away from employees that they would otherwise have a right to. They are inserting themselves into the employee’s sanctioned benefits.

Employees are given health insurance as a benefit. Like their pay, it should be considered theirs. They earned it. And just like their pay, they should have the right to do whatever they choose with it. Would it similarly be justified for these religious organizations to dictate what an employee did with his or her pay? A survey of Catholics found that a slight majority support religiously affiliated organizations including birth control in their health insurance. One wonders if they were pointedly asked about whether a woman of a different faith working at a Catholic hospital, for example, had the same right to have her employer-based health insurance cover her birth control the way that women are covered at every other type of job, what they would say.

There is little doubt that the Catholic Church is being completely hypocritical when it claims that men should be granted reasonable access to Viagra and women should not similarly receive birth control. Allegedly, their stance on reproduction is that “man” is not supposed to interfere with it at all. For example, a devout Catholic friend of mine had infertility problems for many years, but when she and her husband wanted to pursue various kinds of infertility treatments, their priest said it was not allowed. The reason was that man was not supposed to interfere with God’s plan for reproduction, either way it goes whether you used the man-made tool of birth control or in-vitro fertilization. So, if a man has erectile dysfunction, it follows that Viagra should not be used. This is a man-made creation that interferes with God’s plan that the man be unable to use his genitals to impregnate his partner. But an even better point is that these religious protesters have said nothing at all about paying for vasectomies, which are covered by insurance. Where is their protest for this coverage?

There is also the argument that birth control is not a health issue, when it clearly is. Not only are there numerous health conditions for which birth control is prescribed that are unrelated to reproduction (one of them I happen to have is polycystic ovarian syndrome), but there are a whole host of disorders and health risks associated with pregnancy and child birth which women ought to have the right to avoid.

There really is not a greater decision in life than whether or not to have children. There is little else that alters your life so significantly. Women are disproportionately burdened with preventing childbirth when a child is not wanted, and men have spent a great deal of time putting obstacles in her way as she tries to exercise the right to do so. If the Founding Fathers could have envisioned either birth control or women’s equality, it would probably have been in the Bill of Rights. The ACA took a huge step forward by insuring that women could exercise the right to control their reproduction in an affordable way. We can only hope that our courts do not undo the good that has been done. If they choose to take away our rights, there’s always hope for the option of single payer health care, which would at last bypass these religious dictates.

Copyright PoliticusUSA LLC 2008-2023

Live your pro-democracy values by supporting independent news and analysis. 

Subscribe to The Daily: