The ecumenical and interreligious battle heating up against the Obama administration’s health care law, known as the Affordable Care Act, or more popularly Obamacare, most probably will end up before the Supreme Court. Numerous lawsuits have been filed across the U. S. by the Catholic Church, Evangelicals, Mennonites and some Orthodox Jewish groups this past year challenging a provision in the law that requires employers to cover birth control in employee health plans. The law has a provision in it that mandates that employers must cover “contraceptive methods and sterilization procedures” even those that include the “morning-after pills” that can possibly lead to an abortion of a fertilized human zygote, the earliest stage of human life.
Douglas Laycock, a law professor at the University of Virginia and authority on church-state issues, recently commented, “This is highly likely to end up at the Supreme Court. There are so many cases, and we are already getting strong disagreements among the circuit courts.” Earlier battles over this provision led to the Obama administration backing off from forcing all religious employers to provide such coverage only if they fall under the following criteria: One, the inculcation of religious values is the purpose of the organization. Two, the organization primarily employs persons who share the religious tenets of the organization. Three, the organization serves primarily persons who share the religious tenets of the organization. Four, the organization is a nonprofit organization as described in section 6033 and section 6033 of the Internal Revenue Code of 1986, as amended.
As you can see the problem is that many religious employers have members of other religious persuasions in their employ in hospitals, schools and various other agencies. In December 2011 over 60 leaders of faith-based organizations wrote a public letter to the Obama administration stating their opposition protesting these narrow exemptions to the law. The signatories of the letter included Protestant and Jewish groups representing religious colleges and universities, k-12 schools, faith-based organizations, hospitals and an array of other religiously oriented organizations. The letter was circulated to and signed by only non-Catholic organizations and leaders.
The letter was to counteract the presumption and propaganda by some politicians and media outlets that Catholic leaders and organizations were the only ones speaking out against the revision.
In their letter they stated, “We write not in opposition to Catholic leaders and organizations; rather, we write in solidarity, but separately – to stress that religious organizations and leaders of other faiths are also deeply troubled by and opposed to the mandate and the narrow exemption. If one were to believe what the media reports and what some Democratic legislators say about the HHS mandate, it was only Catholics who had a problem with the contraceptive mandate.”
A battle on this issue before the Supreme Court should be very interesting. Legal scholars contend the judges will most likely vote in concert with their judicially held views concerning “right to privacy.” But as Professor Laycock contends, “The burden is clear especially for religious organizations, which ought to be able to run themselves in accordance with their religious teachings. They are being asked to pay for medications they view as evil.”
Another contentious aspect of this issue is which religious organizations and religious employers will be exempt even if they work out all the gray aspects of the accommodation. As one of the signatories of the above mentioned letter remarked, in trying to define “religious” in his Jewish tradition, Rabbi Soloveichik said, “For Orthodox Jews, religion and tradition govern not only praying in a synagogue, or studying Torah in a Beit Midrash, or wrapping oneself in the blatant trappings of religious observance such as phylacteries. Religion and tradition also inform our conduct in the less obvious manifestations of religious belief, from feeding the hungry, to assessing medical ethics, to a million and one things in between.”
As you can see, this birth control mandate has opened up Pandora’s Box. We are hopeful the Supreme Court will be able sort it all out and continue to guarantee faith communities in this land religious freedom.
Father Joseph D. Wallace is coordinator, Ecumenical and Inter-religious Affairs, Diocese of Camden.
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