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Monday, July 25, 2016

Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II

In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.

About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.

In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.

These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.

These state laws, while presumably intended to ensure that women’s physical health is protected while safeguarding the religious freedom of employers, nonetheless have the effect of regulating the reasons for which women may engage in constitutionally protected conduct. Women who work for religious employers taking advantage of these exceptions may access covered contraception if it is necessary to avoid harm to their health but not for family-planning purposes. According to the framework outlined in Part I, laws that distinguish between acceptable and unacceptable reasons for choosing contraception would be unconstitutional. Similarly to the selective abortion bans discussed in Part I, they allow the employer to dictate the terms of the woman’s reproductive decision, interfering with the woman’s deliberative process as clearly as if the law itself denied women contraceptive access for certain reasons and not others. By empowering employers to privilege certain grounds of decision over others, the government picks and chooses among the reasons a woman may or may not have access to contraception.

The privacy right related to contraceptives is constitutionally protected. However, there is no constitutional free exercise right to be exempt from a generally applicable health insurance mandate because of one’s religious beliefs. The right claimed by Hobby Lobby was based on RFRA, not the Constitution, and the Supreme Court made clear in Employment Division v. Smith that there was no general free exercise right to an exemption from a neutral and generally applicable law. Thus, the woman’s right to choose contraception without regard to the reason should trump.

Ironically, however, one consequence of this analysis is that laws providing blanket exemptions from contraceptive coverage are on firmer constitutional ground than more carefully tailored exemptions. A blanket exemption allowing religious employers to opt out from covering contraceptives would not unconstitutionally privilege certain reasons over others and therefore would not burden the constitutional right to deliberate autonomously, because it would not distinguish between valid and invalid reasons. Is this result a correct one, or a desirable one?

Although this result seems counter-intuitive, it may nonetheless be the correct one based on existing constitutional doctrine. Once the government begins carefully tailoring exemptions, problems can ensue. For example, a statute with a narrowly drafted religious exemption that excludes certain religious groups while protecting others would likely be more problematic than one with no exemption.

Moreover, it may be worth considering the political implications of a decision requiring states to exempt all religious employers from covering contraception in all circumstances, even when it is needed to protect the woman’s health, or none at all. It is possible that the result would be that the practice of covering oral contraceptives for non-family-planning purposes would continue but without the sanction of law; employers and insurers could continue to make the distinction between therapeutic and non-therapeutic contraception, but through private, internal policies. (For example, Catholic employers generally do not have a problem with covering contraception for “therapeutic,” as opposed to family planning purposes.) Since no law would be implicated, there would be no state action and no constitutional problem. On the other hand, there might be value in highlighting the conflict between religious beliefs and private reproductive decision-making in this context. It is worth considering, perhaps in a more public way, whether the distinction between therapeutic and non-therapeutic contraception is one that the government should make and whether the government should be deciding which uses of contraception are sufficient to outweigh an employer’s religious claims. Currently, this debate is submerged by Hobby Lobby and the post-Hobby Lobby discourse, which treats religious exemptions from contraceptives coverage as an all-or-nothing issue.

Posted by Jessie Hill on July 25, 2016 at 05:22 AM in Constitutional thoughts, Religion | Permalink

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