The Erupting Clash between Religion and the State over Contraception, Sterilization, and Abortion
The Erupting Clash between Religion and the State over Contraception, Sterilization, and Abortion, in RELIGIOUS FREEDOM IN AMERICA: CONSTITUTIONAL TRADITIONS AND NEW HORIZONS 135 (Allen Hertzke ed., University of Oklahoma Press, 2014)
37 Pages Posted:
Date Written: October 3, 2018
If there is one lesson from the controversy over the sterilization and contraception coverage mandate (referred to hereafter as the Mandate) under the new Patient Protection and Affordable Care Act (ACA), it is this: unlike other wars, culture wars are rarely won. Decades after Roe v. Wade, many still believe that abortion is “wrong,” both within faith communities and outside them. Few would describe this country’s persistent divide over abortion as a settled issue that either side had “won.” This article chronicles these clashes, illustrating the sharp departure from the live-and-let-live regime surrounding abortion objections since Roe v. Wade. Part I shows that religious objectors are not shielded from legal mandates that conflict with their faith as a matter of U.S. constitutional right, meaning that objectors generally must secure protections in the political process. It then sketches just how quickly seemingly unassailable conscience protections have come under pressure from the federal government, in the form of the Mandate, and from health care providers and state governments. Although these flash points are dissimilar in important ways, together they have left religious objectors feeling that they are under assault. With advance planning, clashes over contested services can frequently be avoided—without sacrificing access to needed services or respect for objectors. Part II then turns to one crucial ground on which some family planning advocates and women’s rights groups urge policymakers to push back against greater accommodations for religious objectors. These groups say that authorizing refusals to dispense ECs such as Plan B and ella condones a scientifically unsupported idea— namely, that Plan B and ella “frequently function to destroy fertilized eggs, which [is tantamount to] abortion on demand.” This article shows that there are two competing accounts about ECs’ mechanism of action, neither of which is completely accurate: family planning advocates say that all forms of ECs act only as contraceptives, whereas objectors say that all forms of ECs can act as abortifacients. Part III shows that the reality appears to be somewhere in the middle. Some forms of ECs appear sometimes to act after fertilization as “contragestives,” meaning they destroy a fertilized egg. Thus, religious objectors can legitimately claim that duties to dispense or pay for ECs place them in the position of not knowing whether they would be facilitating the “destruction of innocent human life.” In the final analysis, policymakers have responded to the erupting clash between religion and the state over the deeply divisive question of abortion with significant concessions for religious objectors to the mandate.
Suggested Citation: Suggested Citation