In its Hobby Lobby ruling, the Supreme Court said that the Obama Administration’s HHS contraception/ sterilization mandate, as applied to “closely held” corporations, violated the Religious Freedom Restoration Act (RFRA). Under RFRA, the government cannot “substantially burden” religious practice or belief unless it has a “compelling interest” to do so and it uses the “least restrictive means” to accomplish this “interest.”
In the Hobby Lobby case, the Court concluded that the HHS mandate was not the “least restrictive means” to pursue its “compelling interest” to mandate free birth control and sterilization under most health care plans. The Court did not determine (but merely assumed for argument sake) that the government has a “compelling interest” to mandate such things.
Sadly, too many individuals (including many Catholics) and institutions are sympathetic to the assertion that there is a “compelling government interest” to promote and fund contraception. The primary basis for this “compelling interest” is the assumption that contraception improves women’s health by preventing unintended pregnancies and abortions.
While this assumption may have some intuitive appeal, it does not survive a simple test of reasoned scrutiny. Such scrutiny has been effectively presented by Helen Alvare, on behalf of Women Speak for Themselves in a brief to the Supreme Court. The brief, along with other great resources, is available online at www.womenspeakforthemselves.com (“SCOTUS Brief” found under “Our Work”). Ms. Alvare is a professor of law at George Mason University School of Law and founder of Women Speak for Themselves.
Professor Alvare has summarized some of the arguments from the brief in various articles. One of those articles, entitled “Meanwhile, Outside the Panic Room: Contraception, Hobby Lobby, and Women’s Rights,” is featured on The Witherspoon Institute’s website, www.thepublicdiscourse.com, a website I highly recommend.
Professor Alvare points out that “relatively few women are actually affected by the majority opinion in Hobby Lobby. Poor women, and even women at several times the poverty level, already have free or subsidized birth control available from the state.
“Since 1970, they have been served by the National Family Planning Program (“Title X”). In 2010, Title X-funded sites served more than five million patients—69 percent at or below the poverty level and 31 percent above—at 4,389 service sites across all fifty states and the District of Columbia.
“Likewise, both Title XIX of the Social Security Act (Medicaid) and Title XX of the Social Security Act provide federal funds to states for pregnancy prevention services available to both adolescents and adults. The federal Maternal and Child Health Block Grant funds 610 school-based or school-linked health clinics. In 2012, Planned Parenthood Federation of America alone received $540 million of government grants and reimbursements directed largely to providing lower-cost contraception.”
Despite this massive funding of birth control for lower income women, the rate of unintended pregnancy is three times higher among women below the poverty line than for women with incomes higher than 200 percent of poverty.
Alvare continues: “Also, generally speaking, the Centers for Disease Control report that cost does not even make the list of “frequently cited reasons for nonuse” among the 11 percent of sexually active women not using contraception. A [Alan] Guttmacher [Institute] source claimed that only 3.7 percent of the total sample of women seeking abortions listed cost as a barrier to contraceptive usage…”
“Women working in small businesses or those with ‘grandfathered’ health plans were never entitled to free contraception under the mandate. Furthermore, women working for larger businesses nearly always have contraceptive coverage. According to…the Alan Guttmacher Institute, “almost every reversible and permanent contraceptive method available” was covered by 90 percent of health insurance plans before the mandate.”
These facts destroy the suggestion that the government has a “compelling interest” to “substantially burden” the religious practice of a small number of employers who object to providing or facilitating free contraceptives and sterilization in their healthcare plans.
