Obama right on contraception rule

I worked hard to overturn the Supreme Court’s decision in Employment Division v. Smith, in which Justice Antonin Scalia wrote, “[i]t may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in,” but found this preferable to requiring the government to ensure that a compelling interest is served when a law substantially burdens religion.  Congress disagreed with that decision, and President Clinton signed our legislation into law, again ensuring that the needs of government and of religion will be appropriately balanced when the two conflict.

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Resolving tension between religious dictates and the requirements of the law has always warranted a delicate balance. I believe that President Obama’s effort has struck the appropriate balance.

In response to concerns raised by the original rule, the administration has provided that no employee will be denied access to contraceptive coverage, and that no objecting religious employer will have to pay for that coverage. This compromise has drawn praise from many of the same voices – including religious voices – that had previously criticized the original rule. 

Yet some are still not satisfied, and the baseless accusations that the president is conducting a war on the constitution and religion continue. This debate does not occur in a vacuum. In addition to an employer’s religious objections, employees also have rights which would be violated by an overly broad exemption. 

Employees have the right to obtain the full range of preventive care coverage recommended by the Institute of Medicine, which includes contraceptives. While there are still many who do not approve of the purpose of the Affordable Care Act, which was to ensure that every American has access to a basic package of health insurance, it is the law, and the right of employees to that basic health care should not be impaired. The president has an obligation to protect their rights as well.

Employees have an equal right to be free from religious coercion, in this case coercion to comply with religious tenets with which they may agree or disagree. While an individual who works in a religious institution can expect to have that institution run according to the dictates of that faith, individuals who work for institutions engaged in primarily secular activities, and which employ people of many faiths, understandably have a very different expectation.

Employees have the right to be free from discrimination on the basis of sex and pregnancy under Title VII of the Civil Rights Act of 1964. The Pregnancy Discrimination Act requires equal treatment of women “affected by pregnancy, childbirth, or related conditions” in all aspects of employment, including the receipt of fringe benefits. The Equal Employment Opportunity Commission ruled in 2000 that the “failure to offer coverage for prescription contraceptive drugs and devices constitutions discrimination on the bases of sex and pregnancy in violation of Title VII.” 

The most surprising part of this debate is that institutions of all types have been subject to these requirements in many states, and under the EEOC’s ruling, for years. Many religiously affiliated institutions have long complied with this rule without incident. There has been no crisis, no national campaign, and no accusations that religious liberty is doomed. This suggests to me that partisans like Mr. Priebus may have concerns other than religious freedom in this debate. 

Whatever the reasons, the president has successfully accommodated the right of all families to basic preventive care, and the right of religious institutions to have their beliefs respected.

Rep. Nadler is the ranking member of the House Judiciary Subcommittee on the Constitution.


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