Contraception act flouts religious freedom

A national “right to contraception” act passed by the U.S. House of Representatives on Thursday fails to recognize existing law that allows employers not to provide birth control benefits to their employees on religious grounds.

In the near term, the point may be moot. Despite passage by a 228-195 vote in the Democrat-controlled House, the contraception measure is considered unpassable in a Senate chamber divided 50-50 along party lines. The vote came one week after a House bid to establish a nationwide right to abortion, with that bill also facing an uphill Senate filibuster battle.

Still, the wave of legislation sparked by the U.S. Supreme Court’s decision to overturn Roe v. Wade signals a backlash against faith-based freedoms. Both Thursday’s contraception measure and an unsuccessful Women’s Health Protection Act in 2021 included language that would supersede the 1993 Religious Freedom Restoration Act (RFRA). Signed by then–President Bill Clinton, the act prevents the federal government from burdening a person’s exercise of religion unless it has a compelling reason and uses the least restrictive means of doing so.

Earlier this year, two GOP senators who support abortion rights—Susan Collins of Maine and Lisa Murkowski of Alaska—criticized the Women’s Health Protection Act. “Congress has never before adopted legislation that contains an exemption to this religious liberty law,” the senators said in a joint statement. Now, the Right to Contraception Act includes the same language superseding religious freedom.

The latest push for contraceptive coverage follows passage of the Affordable Care Act, also known as Obamacare, in 2010. The ACA required employment-based health plans and issuers of health insurance to cover certain preventive health services at no cost to individuals. All Food and Drug Administration–approved contraceptive methods were included in 2012 federal rules.

Nearly all U.S. employers are now providing that coverage, which renders the Right to Contraception Act redundant, said Ronnell Nolan, president and CEO of Health Agents for America, or HAFA.

“I think it’s a political statement,” said Nolan, whose trade group includes health insurance agents in all 50 states. “It’s kind of perplexing why a bill is being voted on that talks about something that’s already in place. It’s here to stay. I’ve said that for many, many years: The Affordable Care Act will never go away.”

No employers served by HAFA have claimed the religious exemption, Ronnell said, but legal cases have persisted despite a 2013 federal rule providing limited exceptions.

In Burwell v. Hobby Lobby, the U.S. Supreme Court voted 5-4 in favor of the privately held retailer. The 2014 decision found RFRA protected Hobby Lobby’s right to object to covering four of 20 FDA-approved contraceptive methods. In 2020, Little Sisters of the Poor—a Roman Catholic religious order operating over two dozen homes for the needy and elderly—prevailed in another Supreme Court decision that recognized the nuns’ religious exemption.

Prior to that ruling, Congressional Research Service attorney Victoria Killion framed the debate this way: “The litigation from Hobby Lobby to Little Sisters of the Poor reflects an ongoing public policy debate over the extent to which the government should accommodate entities with religious or moral objections to contraception, particularly when those accommodations may compromise their employees’ or students’ access to the full range of contraceptive services covered for other women.”

In 1993, prominent senators from both sides of the aisle, including Democrat Ted Kennedy and Republican Orrin Hatch, backed the protection of religious exercise. That fundamental right should weather challenges like the Right to Contraception Act, said Mark Rienzi, CEO of the Becket Fund for Religious Liberty.

“This bill attempts a national override of longstanding and federal religious liberty protections,” Rienzi said, characterizing “the idea that Congress would even consider stripping churches, synagogues, religious individuals and groups of their basic rights [as] offensive and extreme. Religious liberty protections exist precisely to help us live together in a society where we do not all agree on every issue.”