History Is On Our Side: Why the Federal Contraception Rule is Constitutional

History has a way of repeating itself. Almost five decades ago a court in South Carolina considered a claim that a restaurant owner could refuse to serve African-American customers because integration of the races was against his religious beliefs. The court rejected that claim, and courts went on to do the same when faced with other, similar claims that religion can be used to discriminate. 

Relying on this history, today the ACLU and the ACLU of Eastern Missouri filed an amicus brief supporting the federal contraception rule, which requires employers to provide insurance coverage for contraception without a co-pay. The case, O’Brien Industrial Holdings v. Department of Health and Human Services, is yet another challenge by a secular business – this one a holding company for various mining and manufacturing ventures – attempting to argue that the contraception rule is a violation of religious liberty.

The contraception rule will provide access to health care services for millions of women.   Access to contraception is crucial for women’s equal participation in society. Controlling whether and when to have children has had a direct effect on women’s ability to make their own paths in terms of their schooling, careers, their families. The contraception rule is also essential to eliminate the gender disparities in health costs: child-bearing women pay 68 percent more for out-of-pocket costs than men, in large part because of reproductive health needs. The contraception rule is therefore essential to gender equality on many levels.

While today’s controversy centers around access to contraception and eradicating gender discrimination, the claim that the business makes in today’s case – that religious objections should trump laws designed to promote equality – is not unique. A few examples:

•    In 1966, three African-American customers brought a suit against Piggie Park restaurants, and their owner, Maurice Bessinger, for refusal to serve them. Bessinger argued that enforcement of the Civil Rights Act, which prohibits that type of discrimination, violated his religious freedom “since his religious beliefs compel[ed] him to oppose any integration of the races whatever.”
•    In 1976, Roanoke Valley Christian Schools added a “head of household” supplement to their teachers’ salaries – which according to their beliefs meant married men, and not women. When sued under the Equal Pay Act, Roanoke Valley claimed a right to an exemption. According to the church pastor affiliated with the school, “[w]hen we turned to the Scriptures to determine head of household, by scriptural basis, we found that the Bible clearly teaches that the husband is the head of the house, head of the wife, head of the family.” 
•    In the 1980’s, Bob Jones University, a religiously-affiliated school in South Carolina, wanted an exemption from a rule denying tax-exempt status to schools that practice racial discrimination. The “sponsors of the University genuinely believe[d] that the Bible forbids interracial dating and marriage,” and it was school policy that students engaged in interracial relationships, or advocacy thereof, would be expelled. 

Fortunately, in all of these cases, the court rejected the claim that religious beliefs can trump anti-discrimination laws. Even in the 1960’s, the court recognized that although a business owner has a constitutional right to express his religious beliefs, he does not have an absolute right to exercise such beliefs “in utter disregard” of the rights of others. The court in today’s case should follow history and what courts have long recognized: that religion is not a license to discriminate.

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Anonymous

But since this mandate clearly discriminates against non-muslim peoples, why are you not fighting to include them? They are exempt because of their religious beliefs. Why are you not according christian/catholics the same thing? The ACLU has become VERY anti-American.

Liz

I take issue with this statement.

Access to contraception is crucial for women’s equal participation in society. Controlling whether and when to have children has had a direct effect on women’s ability to make their own paths in terms of their schooling, careers, their families.

You do not need contraception to control whether and when to have children.

Anonymous

You cannot be serious. The arguments presented here are completely illogical. No one is attempting to limit access to anything. Religious organizations cannot be made to FUND things they are opposed to. There is no discrimination here and the attempted correlation to racism is a blatant attempt to romanticize this issue for political gain. It is COMPLETELY against the constitution to ban or limit the SALE of contraception, as it is also COMPLETELY against the constitution to FORCE people to pay for it. Try having an adult conversation without the deception and maybe we can all come to an agreement. Keep this up, and we get nowhere.

Anonymous

Once again you are comparing apples to oranges. None of the so-called precedences are even remotely similar to the current issue. Keep digging, maybe you'll strike CRAP again.

JoAnna

I wrote a blog post in response to this condescending, offensive, and insulting rhetoric. The spam filter won't allow me to post the link, but go to a-star-of-hope dot blogspot dot com and look for the post titled "Screw You, ACLU."

In a nutshell, I can participate equally in society while retaining both my femininity and my fertility, and I can do it without forcing anyone to violate their religious beliefs. You would do women a much greater service if you helped them realize their potential to do likewise instead of telling them that they can't possibly participate equally in society unless they pretend to be men.

Anonymous

The issue is not with the people (women or men) wanting contraception. It is with forcing the Church to provide contraception to anyone. The Church is not discriminating against any class of persons they are refusing to provide contraception/abortifacients to ANY person not just some. I don't think you're gonna win this one.

Anonymous

Any religious belief church if they accept public money/funding/goods/public insurances etc to support their belief are hypricrites because they fight being forced to accept birth control. If they don't want to make available birth control well all this funding by the gov't at all levels need to be stopped as well as having their tax exemption license. Let them support themselves 1001% percent. Let their people go to a place that their people are accepted so the ones who don't lose even more $ and the people as well that once supported them.

Anonymous

If the Catholics do not want to pay for birth control, my question is: do they check the marital status of every man who has an erectile dysfunction medication prescription before filling it??? Certainly, if a man isn't married, there should be no need for such medications if they are following the church's doctrine. This is discrimination against women. There are off label uses for the BCP like dysmenorrhea, heavy cycles, and polycystic ovarian disease. I guess the church knows more than a physician!??

Anonymous

No. They don't want to pay for birth control. They insist on their "God-given right to go in bareback."
Then connect it to religious beliefs b/c they think everybody's so stupid they're not going to know it's just them and their "God-given right to go in bareback."

Anonymous

I'm going to pray that all the women speaking here find out exactly how you can "get pregnant out of your own control" without contraception.

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