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On Monday, Americans United filed a friend-of-the-court brief in Real Alternatives v. Burwell— yet another challenge to the Affordable Care Act’s requirement that employers who provide health insurance to employees must include contraception coverage.
Many of our allies joined us on this brief: the Anti-Defamation League; the Central Conference of American Rabbis; Hadassah, the Women’s Zionist Organization of America, Inc.; the National Council of Jewish Women; People For the American Way Foundation; the Union for Reform Judaism and the Women of Reform Judaism.
This case is different from the ones that the U.S. Supreme Court considered last spring (and that have been described in this blog before), however, because it was brought by a non-religious organization that wants to receive the exemption from the contraceptive-coverage requirement that is afforded to houses of worship.
Under the ACA, employers must cover all FDA-approved contraceptives, but the government offers two different religious accommodations. First, houses of worship are totally exempt, meaning that their employees don’t receive coverage for contraception if their employers don’t want to provide it. Second, religious non-profits and closely held for-profit entities are entitled to opt out of providing the coverage if they notify their insurer or the government – in which case the government arranges for the insurance company to provide the coverage to employees without cost to, or participation by, the objecting employer.
Real Alternatives, Inc., is an avowedly non-religious anti-choice non-profit organization based in Pennsylvania. It contracts with Pennsylvania and other states to provide state-funded pregnancy support and counseling to women. In delivering those services, it ensures that the women receive no information about or access to emergency contraception or abortions.
Because Real Alternatives believes that all contraception is immoral, it sued to challenge the ACA, arguing that it should be treated like a church and receive the house-of-worship exemption from the ACA’s contraception-coverage requirement, meaning that its employees and their dependents would receive no insurance coverage for contraception – not under their employers’ group health plan and not separately (as employees of religiously affiliated entities do).
The three men who work for Real Alternatives also joined in the lawsuit, arguing that the federal Religious Freedom Restoration Act gives them the right to demand a health-insurance policy from their employer that excludes contraception coverage for themselves and their wives and daughters because the employees personally hold religious objections to contraception.
Neither argument has merit.
First, Real Alternatives is nothing like a church— or even a non-theistic equivalent to a church, such as a Humanist congregation. The government is free, and has legitimate reasons, to treat it differently from a church regardless of how sincere its moral convictions may be.
And second, the Religious Freedom Restoration Act affords accommodations to those whose religious exercise is substantially burdened by a general law, but only if the exemption doesn’t harm anyone else. Having an insurance policy that covers health services that you don’t want and won’t use doesn’t burden your religious exercise. Real Alternatives’s employees remain free not to use contraceptives if that’s what their religion teaches, just as many other people decline to use covered medical services (such as chemotherapy or blood transfusions) for religious reasons – or even for nonreligious reasons (such as declining to get an annual physical or to take advantage of discounted gym memberships).
The real point, though, is that employees who receive health insurance for their families through their place of employment shouldn’t have the right to force their dependents into their religious exercise by depriving them of the healthcare coverage that the law guarantees to them.
Giving employees control over their dependents’ access to affordable contraception would throw our society back to a time when husbands could dictate the reproductive choices of their wives and daughters. Religious freedom does not require us to turn back the clock.