The Contraception Exception

In arguing last week for the “contraception exception,” did Catholic Bishops – whose compassion for human beings is generally second to no one’s – really mean to open the door to those who would deny people access to other needed prevention services?

To recap, the Obama Administration announced that birth control had to be a part of employer-based health insurance plans.  Contraception is considered preventive health, and the Affordable Care Act mandates this and many other prevention services be offered free of charge.

The Catholic Bishops objected strongly.  They are morally opposed to birth control, and argued that, as an employer, the Church should not be compelled to pay for prevention services it deems immoral.

The Obama Administration then announced a compromise.  No religious institution would be required to pay for contraception services in its health insurance plan, but insurers would still have to cover the services for women who wanted them.

On Friday, it appeared that Catholic leaders would accept the compromise. 

Cardinal-designate Timothy M. Dolan, who heads the U.S. Conference of Bishops, called the Administration’s announcement “a first step in the right direction” of “preserving the principle of religious freedom.”

But by Saturday the U.S. Conference had issued a strong statement declaring that “the only complete solution to this religious liberty problem” was “to rescind the mandate of these objectionable services.”

Some commentators have taken a cynical view about the Bishops’ statement, arguing that they’re out of touch with the 99% of U.S. women who have used birth control. 

In the past, governments have preserved access to ethically controversial services, including contraception, abortion, and capital punishment, while assuring that no one with an objection had to pay or participate.

As Kaiser Health News pointed out in a February 8^th blog, over half the states required coverage of contraception services before the passage of the Affordable Care Act, and twenty of those had some form of exemption for religious institution employers.

The Bishops’ Saturday statement breaks new ground in demanding that a prevention “mandate” be rescinded. 

It has the potential to change the way we make public policy regarding both prevention and health care services in ways the Bishops themselves would not support.

Historically, we have protected most religious objections to health care treatment.  But we haven’t allowed a religious organization to run roughshod over nonbelievers.  Jehovah’s Witnesses, for example, can refuse blood transfusions, but they can’t deny them to a non-believer. 

But it is a prevention service to which the Bishops seek to deny access, not a health care treatment service. 

The Bishops argue that this is just about their rights under the first Amendment to the Constitution, which reads in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  

However, we also have a Ninth Amendment which reads:  “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”   In other words, the Church’s First Amendment rights don’t come at the expense of someone else’s Ninth Amendment rights.

So then everyone must be given the opportunity to maintain their health by accessing whatever prevention services they need, consistent with their own religious and secular beliefs – unless we do not have a Constitutional right to health.

That last part is the door the Bishops – who also support universal health care – have now cracked open.

By creating a Constitutional objection to some prevention services under the Affordable Care Act, they are inviting others with less life-affirming goals to make theology-based Constitutional objections to other prevention services, too.

There are policy leaders in this country who don’t believe that people have a “right” to health.  They see health care as a commodity, subject to the whims of the free market.  They don’t support insurance mandates – for contraception, prenatal care, child health, or anything else.  You can already see them piously wrapping themselves in the Bishops’ cloaks. 

It is a slippery slope for Bishops – who on Saturday also reiterated their support for “access to life-affirming healthcare for all” – to cast their lot with these “unchristian” people. 

If the Bishops are true to their beliefs, they will speak out in the coming days as forcefully to these policy leaders as they did to the President – about why they supported health care for all in the first place.

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