Contraceptive Coverage Laws: Eliminating Gender Discrimination or Infringing on Religious Liberties?
Inimai M. Chettiar
Brennan Center for Justice, NYU School of Law; New York University School of Law
University of Chicago Law Review, Vol. 69, No. 1867, 2002
To ensure that women receive access to contraceptives, state legislatures have recently enacted measures requir-ing insurers to cover contraceptives under their insurance plans. Congress is considering a similar law that would require insurance plans to provide the same level of coverage for all FDA-approved prescription contraceptives and related outpatient services as they provide for other prescription drugs and preventive care. Currently, most insurance plans cover preventive prescription drugs yet do not cover contraceptive drugs and devices. Legislatures passed these contraceptive coverage laws, therefore, to eliminate this gender discrimination.
Some religious employers and insurers, however, believe that the use of contraception is a sin and that assisting another person to commit a sin is a sin itself. They claim that contraceptive coverage laws inhibit their free exercise of religion in violation of the First Amendment. Out of respect for these employers and insurers, some legislatures included exemptions (also called “conscience provisions”) for those entities that object to contraception on religious grounds.
Some employers and insurers that object to coverage based on religious grounds, however, may not fall within the statutory exemptions. For example, Catholic Charities, a public benefits corporation that provides social benefits to beneficiaries of all faiths, does not fit within the California statutory exemption; however, providing contraceptive benefits to its employees violates Catholic Charities' religious beliefs. On the other hand, a Catholic church would be exempt from California's law.
Entities such as Catholic Charities have at least two constitutional claims. The first claim is based on the Establishment Clause: By exempting only certain employers, the state has endorsed the beliefs of the exempted employers' religions and “established” those religions. The other is grounded in the Free Exercise Clause: By failing to exempt the employer the law forces the employer to provide contraceptive benefits even when providing such benefits is against the employer's religious beliefs.
This Comment assesses the constitutionality of state contraceptive coverage laws under the Free Exercise Clause, examining both laws with exemptions for religious insurers and employers and laws without such exemptions. Only one state appellate court has reviewed whether a contraceptive coverage law violates the Free Exercise Clause. The California appellate court decision, which upheld the law, is currently before the California Supreme Court.
Whether a contraceptive coverage law violates the Free Exercise Clause depends on to whom the law applies. The analysis turns on whether the law contains an exemption and, if so, which entities the law exempts. Under Supreme Court precedent, laws without exemptions, which are laws that require all employers to offer contraceptive coverage, do not violate the First Amendment's Free Exercise Clause because they are neutral and generally applicable.
The constitutionality of laws with exemptions, however, is more complex because the scope of the exemptions varies by state. Some states exempt only certain religious entities. This Comment refers to these as “selective exemptions.” For example, California's statute exempts a religious employer only if the employer has a purpose of inculcating religious values, primarily employs persons who share its religious tenets, primarily serves persons who share its religious tenets, and qualifies as a nonprofit organization. Other states exempt all religious entities that choose to be exempted. This Comment will refer to these as “broad exemptions.” For example, Maryland's statute exempts any religious organization if coverage “conflicts with (its) bona fide religious beliefs and practices.”
Part I of this Comment explains the Supreme Court's two Free Exercise Clause tests. Part I.A lays out the first test: If a law that infringes on religious liberties is not neutral or not generally applicable, then it must survive strict scrutiny - it must be narrowly tailored to fulfill a compelling government interest. Part I.B explains the second test: If a law is neutral and generally applicable, it need not provide any religious exemption to be constitutional. Part II presents an overview of state contraceptive coverage legislation. Part II.A focuses on the laws' requirements. Part II.B examines the scope of the various exemptions, dividing them into three categories: no exemption, broad exemptions, and selective exemptions. This Part also clarifies that contraceptive coverage laws with broad religious exemptions do not pose a free exercise threat to the rights of religious employers and insurers and will therefore not be addressed in this Comment's free exercise analysis.
Part III and Part IV propose a multipart framework for courts to apply when evaluating whether contraceptive coverage laws violate the free exercise rights of religious insurers and employers. Part III argues that state laws without religious exemptions are constitutional because they are neutral laws of general applicability. Part IV focuses on contraceptive coverage laws with selective exemptions. Part IV.A argues that state laws with selective exemptions are not generally applicable; therefore, these laws must survive strict scrutiny to pass constitutional muster. Part IV.B.1 asserts that contraceptive coverage laws in general, and selective exemptions in particular, serve the compelling state interest of eradicating gender discrimination against female employees, and this interest is sufficient to overcome the employers' and insurers' free exercise rights. Part IV.B.2 argues that selective exemptions are narrowly tailored to serve that interest because they either include a “categorical exemption” (approved by the Court in previous cases) or because they focus on the object of the compelling interest - ending gender discrimination in insurance benefits provided to employees.
Number of Pages in PDF File: 29
Keywords: contraception, contraceptive coverage, free exercise, equal protection, first amendment, religious refusals, reproductive rights, strict scrutinyAccepted Paper Series
Date posted: November 6, 2010
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