This notion of the Affordable Care Act (ACA, a.k.a. Obamacare) as a violation of a person’s religious liberty persists because it sounds like a convincing argument. It isn’t, of course, or the law wouldn’t have been ruled constitutional by the (majority Catholic) US Supreme Court. There are two main reasons why this argument does not hold water:
- It is a red herring.
- It is not sound policy.
It is a red herring because it mischaracterizes the way the law works. That the Supreme Court has ruled that the law is constitutional in its entirety (including this contraception mandate) should be sufficient to illustrate why this objection is irrelevant, but I’ll elaborate further for the sake of being comprehensive.
The religious “moral objection” issue seeks to erroneously portray the law (savvy readers might recognize this terminology as indicative of a straw man) by claiming that the law requires employers to provide contraception for their employees. This is false. So what does this law do? It does three things:
- It mandates that people carry health insurance.
- It mandates that employers of a certain size (50+ employees) offer health insurance.
- It regulates the insurance industry.
At the abstract level, that’s “all” it does.
* * *
Because the US health insurance industry functions almost entirely through employer-based policies, most people do not negotiate their relationship with their health insurance company directly—this is done by the employer, who acts as a kind of matchmaking service between the prospective bride-employee and groom-company (I’ll leave it to the deft imagination of you, dear reader, to establish why I have selected such imagery). There are people who have personal policies, either due to eschewing their employer’s preferred coverage or just because they prefer another company,* and for these people, their employer is not relevant to any discussion of healthcare or health insurance. For everyone else, the employer-employee relationship extends into the healthcare sphere only in that the employer selects a health insurance company and makes coverage through that company available to its employees. The employer is not entitled to any knowledge about the healthcare services you receive—this information has been declared protected (confidential) by federal law. The only role that an employer has in your personal health insurance extends no further than that of a middle manager—they collect money from you in the form of monthly premiums, but they basically have no part in any other area.
It is not very realistic to choose an alternative personal policy when your employer offers insurance coverage. Most employers subsidize coverage through their chosen insurance company, so that makes these policies cheaper for the employee than they would otherwise be. It also tends to be cheaper to buy things in bulk, and insurance is no exception. Employers can negotiate rates with insurance companies in ways that individuals cannot hope to manage. (“Your regular rate is X. I have 100 employees who need insurance. Your rate is no better than your competitor’s, and my business is growing, meaning I will probably have more than 100 employees in the future. If you reduce your regular rate of X by Y% for me, I will select you as the insurance provider for my company.” The insurance companies profit from an increase in business, and the employers profit by spending less to cover their employees.) That this kind of negotiation has been taking place for so many years means it is almost universally cheaper to select your employer’s insurance policy than to seek your own policy through external coverage plans because you cannot negotiate as effectively. Thus, this employer-provided system has become a self-reinforcing trend. Of course, none of this has anything to do with the ACA.
In terms of the current conversation, the ACA becomes relevant in its third prong. It regulates health insurance industries in part by requiring that they cover contraceptive healthcare services; it says that insurance companies may not refuse to cover these. Because of this single stipulation, the “religious liberties” crowd would have you believe that employers are being forced to pay for their employees’ abortions. Again, this is not the case. The law requires that employers select an insurance company and make coverage through that company available to their employees. That is all.
There is a religious liberty argument to be had here, but it runs in the exact opposite direction: those who adopt this “moral objection” argument are attempting to force their religious beliefs onto the rest of the country by demanding an exemption from the equal protection of the law due to every US citizen—the exemption that Catholics (et al.) are demanding would elevate their own religious beliefs above all others in the nation, and that would be terribly dangerous. Equal protection means that laws must prioritize what is good for the nation over what satisfies the religious sentiments of fundamentalists. Allowing religious employers to deny the equal healthcare coverage owed to all US citizens under the ACA would be a violation of 1) those citizens’ right to religious freedom and 2) the equal protection clause of the US Constitution.
That addresses my first point, that the argument is a red herring, but it does not address my second criticism, that it would be horrible policy.
In a very tangential way, the current law does require that money be spent on contraception. Catholics are free to feel that this is immoral, but they are not considering the consequences of allowing these kinds of moral objections to determine the legality of tax expenditures. I have written an article on why their beliefs are inconsistent, but I would like to briefly detail what it would look like if the government accepted this argument and applied it to all areas of governance:
- For Jehovah’s Witnesses, we would have to withdraw hospital subsidies because hospitals provide blood transfusions.
- For literalist Christians, we would have to release any prisoner who murdered someone for working on the Sabbath. (They were, after all, following scripture, so their actions were required by their religion—not murdering the person would have been a violation of their religious morality.)
- For Jews and Muslims, we would have to end subsidies for farms that raise pigs or use pig-derived anything in their operations.
- For Hindus, we would have to end subsidies for farms that raise cows or use cow-derived products.
- For Jains, we would have to end subsidies for farms that raise any animals for food.
- For adherents of non-technological tribal religions, the government would have to stop building roads, managing utilities, and so on.
- For a lot of religions, we would have to stop all military operations (because military operations kill people).
- We would have to tailor the government to suit every new cult that popped up, causing all manner of services to irreparably disappear.
This last one is perhaps the most important because it highlights the hypocrisy necessary to maintain an argument that the government should never require things that are morally distasteful.
The government cannot decide which religions are “true” religions. The government cannot rule any religion to be false, misguided, or invalid. The government cannot do this because of the First Amendment. Thus, the only two options are these:
- The government accepts every religion at face value, withdrawing funding from everything that any religion finds distasteful.
- The government gains the ability to declare religions invalid, meaning they are free to declare that any given sect’s interpretation of morality is irrelevant.
In the case of the first option, we will soon be left with no government at all.
In the case of the second, we will soon be left with no religious freedom at all. Furthermore, if the government gains this power, there can be no reason to accept the “moral objection” argument in the first place because the government could just declare any religion that objects to be invalid.
Thus, for the sake of a stable society (to address the first option) and for the sake of fairness (as equal protection under the law), the best option from a pure policy standpoint is to reject the argument from moral objection. That’s not to say that no considerations may be given to religious preference under the law; this is clearly not the case. Churches are tax-exempt organizations, clergy have greater legal rights than laypeople, and parents are permitted to inflict their religious proclivities on their children—each of these is an example of religion having special privileges. The bar, then, must be set in a position of compromise. The Supreme Court has long applied a substantial burden test for determining the constitutionality of any law that may step on religion’s toes. Even accepting the premise of fungibility, the few dollars that tangentially move from a religious person’s tax dollars into a secular healthcare system that does not discriminate according to religion (and thus offers contraceptive care to women) clearly does not constitute a “substantial burden” of one’s religious liberties. (Any religion that sought to implement a religious edict of “none of your money may ever be spent on immoral things” would be the entity creating a substantial burden!) The Supreme Court has said that this law does not infringe freedom, and given its position as the ultimate legal arbiter in the United States, that should be sufficient to demonstrate the constitutionality of the law. Thankfully, they did not rule in favor of the extreme Catholic position—had they done so, the natural consequence would be the eventual death of government for the vain sake of religious libertarianism.
* Or occasionally because they are poor or disabled and thus may be eligible for Medicare or Medicaid.