CHARLESTON, W.Va. -- Recently, car dealer Joe Holland, along with faith-based advocacy groups, filed a federal lawsuit challenging the "Obamacare" requirement that employer-sponsored health insurance plans cover the so-called morning-after pill, a form of emergency contraception some have called an "abortion pill." This suit is just the latest of dozens already pending in courts throughout the country challenging the same provision. Within the next few years, the issue will certainly end up before the U.S. Supreme Court, and that Court's ruling on the issue will have long-lasting implications.
I have the utmost respect for the religious beliefs and freedoms of Holland and his co-plaintiffs in the suit. The First Amendment clearly protects their strongly held religious convictions that the morning-after pill is a form of abortion.
However, the relief that Holland and the other plaintiffs are requesting will ultimately undermine, rather than strengthen, the First Amendment.
The First Amendment, among other things, is intended to simultaneously prevent government establishment of religion and to protect each individual's religious beliefs. A ruling that the emergency contraception mandate violates the First Amendment would beget a fundamental question: Which religious beliefs are exempted from the requirements of the law?
This is not a hypothetical question. Several religions and denominations believe, to various degrees, that certain types of medical care are immoral. Many Catholics and other people believe that all forms of contraception, not just the morning-after pill, are prohibited by the Bible. Further, when researchers developed a vaccine for HPV -- a sexually transmitted disease linked to certain types of cancer -- many people opposed mandatory administration of the vaccine on the grounds that it encouraged promiscuity and promoted immorality. Similar controversies will likely arise as vaccines or cures are developed for HIV/AIDS, herpes and other venereal diseases.
Medically related religious beliefs are not limited to abortion, contraception or STDs. Many Jehovah's Witnesses believe that blood transfusions are immoral. Some religions forbid any level of medical intervention, even if it means withholding potentially life-saving treatment from a child. Courts and legislatures have struggled for decades with the legal implications of these religious beliefs, with less-than-consistent results.
If courts decide that the morning-after pill coverage requirement violates the First Amendment, then they face the difficult decision of whether employers can avoid paying for coverage of certain vaccines, nonemergency contraceptives, blood transfusions, or medical coverage in general. Somewhere, a line must be drawn, or else employers could impose their own religious beliefs on their employees' health-care decisions. But if the courts draw such a line, they would enshrine some religious viewpoints while excluding others. This would violate the very principles of religious freedom that Holland and others claim to be fighting for.
Supporters of Holland's lawsuit might respond that the line should be drawn at abortions, the death of an unborn child. However, medically speaking, there is no evidence that the morning-after pill induces abortions. Rather, it prevents pregnancy (as that term is used medically) from occurring in the first place. Even though many believe that the embryo is a human life at this point, this is ultimately a religious belief, not a secular or scientific belief. (There are pills that do induce medical abortions, but these are not covered by the new federal regulations.) Therefore, a judicially crafted "abortion-only" rule would still endorse one set of religious beliefs over the religious beliefs of others. The First Amendment is designed to prevent this very result.
Further, allowing employers to avoid providing certain coverage based on religious grounds opens the door to less-scrupulous employers using religion as an excuse to save a few bucks. (Again, this is not a hypothetical concern; many small "religious" groups seek to abuse the tax-exempt status reserved for religious organizations.) This would leave courts with the near-impossible task of determining whether or not a given employer's religious beliefs are genuine.
I am sympathetic to Holland and his co-plaintiffs. I have no doubt that they do genuinely believe that the morning-after pill is a form of abortion and, therefore, a form of murder. It must be frustrating to face substantial fines (up to $15,000 per day) for failing to pay for your employees to potentially murder an unborn child.
However, the mandate only requires employers to provide insurance coverage for the morning-after pill. There is no requirement that their employees actually purchase and use the pills.
Ultimately, the choice of whether to take the pill -- and the moral implications that flow from this choice -- lies with each individual employee. It is no different than a worker using his or her wages (mandated by law) to pay for an abortion, or to buy birth control pills, illegal drugs, alcohol or lottery tickets. The employer is indirectly enabling these activities by paying the wages, but the moral decision is made by the employee of his or her own free will.
Similarly, the risk that an employee might use employer-sponsored medical insurance for an immoral purpose should not be enough to excuse employers from the requirements of a generally applicable law. Rather, the better rule is to give the individual receiving the mandated benefit the choice, as they will be the ones facing the consequences, both on earth and Hereafter. That individual choice is the one the First Amendment is meant to protect.
Merical is a Charleston lawyer.