Saturday evening, just hours before the House vote on Resolution 59, legislation that sought to prevent the government shutdown in exchange for pushing Obamacare's start date back by a year, Republican representatives slipped in a conscience clause. If that clause sticks around in whatever incarnation of the bill passes, it would give employers the right to opt out of providing preventative health care for women if they find it to be objectionable for moral or religious reasons.
If Obamacare is delayed, American women without insurance will have to wait another year to receive access to contraception and care. But if the conscience clause stays, even employer-insured women could lose these benefits, if they work for religiously-minded companies .
The conscience clause is part of the amended bill that was rejected by the Democrat-led Senate. As it stands, the Affordable Care Act includes a mandate that requires private insurance plans that existed before the ACA to begin providing preventative health care benefits for women, including contraception, annual well-woman visits, and domestic violence counseling. All new plans were required to begin providing these services last August. The exception to this rule is religious non-profit organizations.
Those requirements may not last. Right now, a number of employers that do not qualify as religious non-profit organizations are suing the government for the right not to provide contraceptives (or preventative care) for the women who work for them. By citing a (somewhat unrelated) court case, they’re making the case that to mandate companies to provide free birth control under employee insurance plans is a violation of their freedom of religious expression. Here's how it happened:
From Citizens United to ... contraception?
In 2010, two seemingly unrelated events occurred: In January, the Supreme Court's decision in the case Citizens United v Federal Elections Commission gave corporations the right to spend unlimited money on campaigns. It was suggested in the ruling that this fell under the First Amendment’s protection of freedom of speech: “The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation.”
Two months later, President Obama passed the Affordable Care Act (ACA, or Obamacare). It gave women the right to contraception under employer insurance plans. It also gave non-profit religious employers the right to deny that contraception on religious grounds.
Not long after, somebody put two and two (and the ACA) together. If a corporation has the right to freedom of speech, as implied by Citizens, perhaps it also has the right to the freedom of the expression of religion. For example, if an employer decided that contraception was against their religious values and was forced to provide it to their employees anyway under Obamacare, then that act would be unconstitutional. It would therefore be a violation of constitutionally-protected freedoms.
The company Hobby Lobby was one of the first to try to opt out of providing birth control coverage to employees last September. The owners of the chain, the Green family, are deeply religious.
"Our family is now being forced to choose to between following the laws of the land that we love or maintaining the religious beliefs that have made our business successful and supported our family and thousands of our employees and their families," Green said last year. "We simply cannot abandon our religious beliefs to comply with this mandate."
In June, they won.
Thirty-nine for-profit companies followed their lead, and are currently suing for the right not to provide contraception to their employees because of the threat to the corporations’ religious freedoms.
But their success is hit-or-miss: Last year, a company of Pennsylvanian Mennonite cabinet makers sued for their right not to provide contraception for their employees, citing Citizens. The judges of the 3rd Circuit Court of Appeals responded in their ruling that a holding “that a for-profit corporation can engage in religious exercise — would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners."
In other words, as Mother Jones put it, “it's very difficult to figure out how, exactly, an entity that exists mostly on paper can pray, worship, take communion or experience or express religious beliefs.”
So what's next?
In tying women’s access to health care to the bill meant to hold the government hostage, 47 million American women became Republicans’ bargaining chips, pawns to be debated over in a high-stakes game.
If the Republicans' amended bill is approved with the conscience clause, not only would Obamacare be pushed back a year, but many women would also be out of contraceptive coverage during the delay.
But there’s another important point to be made.
A conscience clause usually takes the form of an opt-out policy based on “pitting individual religious autonomy against the public interest,” according to the American Bar Association. Essentially, it carves a slot in a piece of legislation for an individual’s right to expression of religion, even if it goes against the legislation itself. The educational equivalent is allowing a Missouri student who believes in creationism to opt out of any homework about evolution.
In this case, the conscience clause protects the corporation's freedom of expression but not individual women's. In fact, it limits women's freedom, and only women's.
Cecile Richards, president of Planned Parenthood, argued in a CNN op-ed that the legislation is inherently discriminatory: “employers would not be able to refuse to cover preventive care specific to men for ‘moral’ reasons.”
By taking away contraception and health care for women who want it on religious or moral grounds, employers force their morals on women in ways that stand to dramatically affect those women's lives. There are undoubtedly women who share the belief that contraception is morally wrong, but the conscience clause doesn't allow women to choose for themselves whether or not to take the Pill. And for each day women who want it can't afford birth control, or for each cancer screening they cannot afford without coverage, women are living under someone else’s moral code — at their own risk.
As the New York Times succinctly put it in a staff editorial: “Allowing employees to make independent decisions to obtain contraceptives does not violate anyone’s religious freedom. If the Supreme Court takes up these cases, it should soundly reject the warped view that some employers can get out of complying with the new law, and in effect use their religious beliefs to discriminate against women.”