Healthcare should be a secular concern, and the animosity expressed towards birth control by religious institutions thus far is a crucial example of why the separation of church and state is so valuable: churches have never guarded the liberties of the people.
After the Supreme Court decided to uphold President Obama’s healthcare reform legislation as constitutional late last month, debate over the ‘individual mandate’ remained animated, especially given the divided nature of the court’s ruling (five votes to four). The majority opinion held that Congress has the constitutional power to implement the mandate because, as Chief Justice John Roberts explained, ‘the mandate can be regarded as establishing a condition – not owning health insurance – that triggers a tax – the required payment to IRS’. However, while the Supreme Court decision focused primarily on the economic arrangements of the legislation, it is its social implications that are likely to remain an important area of constitutional debate.
Even prior to the court decision, the United States Conference of Catholic Bishops (USCCB) began a ‘Fortnight For Freedom’ from 21stJune in a bid to combat what it perceives as vulnerability in the wake of the administration’s healthcare reform. The organisation argues in a statement on its website that ‘our right to live out our faith is being threatened – from Washington forcing Catholic institutions to provide services that contradict our beliefs to state governments prohibiting our charities from serving the most vulnerable.’ This complaint refers in part to the government’s incorporation of contraception into health insurance requirements.
While the statement from the USCCB seeks to portray the government as directly targeting religious institutions with insensitive requirements, the administration has arguably remained consistent with the First Amendment that Congress shall make no law respecting an establishment of religion. The integrity of this amendment, the most important in any debate about religious freedom in the United States, has been maintained by the legislation, which does not specify or single out any religious establishments and focuses instead on medical and insurance-related issues. If anything, the executive branch has made extra effort to comfort believers, with a statement from the White House in February specifying that insurance companies rather than religious employers must provide birth control to employees for free.
A more recent announcement by the Obama administration means that self-insured religious institutions will also be required to provide birth control, but that this could be arranged by a separate body. Again, this announcement suggests that, far from threatening religious freedoms, the government has made what concessions it can to ensure that faith-based groups need not directly fund practices they do not agree with.
Given the broader constitutionality of the Affordable Care Act, the issue of birth control also serves as an example of how the Establishment Clause should be interpreted. The separation of church and state should seek to prevent one religious tradition from being prioritised over another, so that laws and rights can remain secular insomuch as they cannot favour one faith at the expense of an individual’s well-being. The birth control provisions of the healthcare law are consistent with the Constitution and should remain entirely separate from religion. In this case, the law is interested in the right of women to have access to free birth control. It does not seek to offend the beliefs of religious people, but, in keeping with the constitutional framework, it should make no special endeavour to appease them either. To do so could threaten the separation of church and state and undermine a broader humanitarian obligation to provide care and treatment to all those who need it.
Healthcare should be a secular concern, and the animosity expressed towards birth control by religious institutions thus far is a crucial example of why, ultimately, the separation of church and state is so valuable. An architect of the Bill of Rights, James Madison perhaps best underlined the rationale for this separation when he observed that, ‘In no instance have…the churches been guardians of the liberties of the people.’