Free Exercise of Religion, Contraception, and Women’s Health Issues, Pt. 1

The controversy created by President Obama’s Administration over whether the Federal government can require religious institutions to provide their employees with insurance plans covering contraceptives has a significant impact upon our Constitutional Republic. The controversy requires the juxtaposition of “rights” created by the government over the right to free exercise of religion as guaranteed by the United States Constitution. In order properly to analyze the controversy in light of this juxtaposition, our first analysis will be to determine whether the Catholic Church’s objection to covering, or providing insurance plans that cover, contraception is a validly held religions belief, warranting constitutional protection.

The constitutional protection of the free exercise of religion is a “fundamental right.” This is an important term to grasp, since the Administration appears to set the stage for the argument that contraception and other women’s health issues fall within this term. In his remarks announcing the so-called “accommodation” for the Catholic Church, President Obama elevates women’s health issues and discusses them on an equal footing with the First Amendment to the Constitution. In so doing, he infers that women’s health issues deserve the same protections as religious liberties. “Fundamental right” is a buzz phrase for attorneys. It means that the courts will apply the highest level of scrutiny—called strict scrutiny—to any alleged interference with that right. For the courts to sustain a law interfering with a “fundamental right,” the law must relate to a “compelling government interest” and must be “narrowly tailored” to achieve the law’s stated intent.

I have not yet seen a detailed discussion examining the Catholic Church’s religious and scientific objections to contraception. There is a plethora of analysis on the federal government’s perceived violation of the Catholic Church’s free exercise of religion, but precious little discussion on why the Church objects to providing or paying for contraception. For lack of better terms, the Church has behavioral and scientific objections to contraception.

The Church’s behavioral objections reflect its application of Biblical teachings relating to sexual activity. The Church takes seriously Biblical dictates requiring Christians to remain sexual pure, establishing the purposes for sexual activity, and promoting the sanctity of marriage. According to the Bible, the purposes for sexual activity are procreation and pleasure. The Bible also permits sexual activity only within the marriage relationship, and any sexual activity outside of marriage is strictly prohibited.

The Church also believes in the sanctity of life. The Bible teaches that life is a gift from God and that only He truly holds the power of life and death. One of man’s roles—and specifically one of the government’s roles—is to protect life at all stages. Life, according to the Church, begins not at birth, but at conception: the moment a sperm and egg unite.

Add the Church’s view on sexual activity with its pro-life views and you will begin to understand its opposition to contraception. Conception is a natural, and Divinely intended, consequence of sexual activity. Contraception removes from sexual activity the natural consequence of pregnancy. In the eyes of the Church, removing this natural consequence promotes promiscuous behavior.

The scientific objection is slightly more sophisticated and requires an explanation into how birth control pills work. Birth control pills use synthetic estrogens and progestins to mimic a woman’s naturally occurring cycle. These synthetic hormones end up confusing a woman’s body, preventing ovulation and enhancing the uterus’s lining. The ultimate result is that birth control pills prevent pregnancy by inhibiting ovulation and preventing fertilized eggs from implanting in the uterus. This latter mechanism of action is also how the Morning-After, or “Plan-B” pill works. Plan-B is a single dose emergency contraceptive containing 15 mg of the progestin Levonorgestrel. This progestin is found in lower doses (usually .15 mg) in birth control pills, such as Seasonale and Seasonique,  and in the birth control device Mirena.

Add the fact that birth control pills prevent a fertilized egg from implanting to the Church’s view that life begins at conception, and you should see the Church’s scientific objection to contraception. In the Church’s eyes, birth control pills do not merely prevent pregnancies; they kill life.

Whether you agree with the Church does not matter. The purpose of this part of the series is to lay the foundation, explaining the factual basis for the Church’s opposition to paying for, or otherwise providing, health insurance plans that cover contraception. The Church’s opposition to contraception is a validly held religious belief. The Department of Health and Human Services and President Obama have created a conflict between the Church, its employees, and the Government. In future articles, we will examine how the courts should analyze and resolve this conflict, on the impact of the Supreme Court’s recent decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC on the contraception issue, and the political impact of attempting to define the subsidization of contraception as a fundamental right.

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