HR 8373: A "Right to Contraception" or a Substantial Burden on the US Religious Community?

Over the summer, a controversial bill sponsored by Representative Kathy Manning, A Democrat representing North Carolina’s 6th Congressional District, passed through the US House of Representatives, with the overwhelming majority of Democrats supporting the bill and most Republicans opposing the proposed legislation. In fact, only 8 Republicans voted in the bill’s favor. The bill, HR 8373, would require all healthcare providers, from the largest hospitals to the smallest clinics, to provide contraceptives upon request to patients. The bill, importantly, does not incorporate a provision allowing religiously affiliated medical facilities or individual practitioners to receive an exemption to the statute upon request. Accordingly, many religious groups that do not approve of the use of contraceptives have publicly expressed their concern that the rigid wording of the statute undermines their constitutional right to free exercise, and have vowed to take legal action if the bill passes in the Senate. In particular, the Susan B. Anthony Pro-Life Americans organization penned an open letter expressing their concern that the bill would pave the way for subsequent legislation requiring religiously-affiliated practices to perform abortion services, even in cases of vehement spiritual opposition, and that the family-planning industry is already heavily subsidized, meaning that contraceptives are already available, even without the support of a select few institutions.

Proponents of the bill, on the other hand, argue that access to contraceptives is a fundamental element of properly administered healthcare, so it stands to reason that all medical providers should be required to have such medications on hand if one of the pateints requests it. Although this provision may burden the religious exercise of a relatively small number of medical practitioners, the bill’s advocates argue that a very compelling government interest, promoting public health and well-being, exists to abridge these rights.

In keeping with surviving precedent set by Sherbert v Verner, if a statute is established that places a substantial burden on an individual’s free religious exercise, it must have a compelling state interest and take on the least restrictive form possible. In this case, I do not believe that HR 8373 is taking the least restrictive means possible, though the compelling state interest does exist. As it stands today, contraceptives are widely available and already receive federal funding. Even if someone looking to obtain a contraceptive cannot obtain it from their regular medical care provider due to a religious objection, they can turn to many other sources to fulfill their need. As such, allowing organizations and individuals to receive religious exemptions would not significantly hamper the public health or undermine the objectives of the bill. More importantly, however, the bill in its current form would set a very dangerous precedent if enacted into law, demonstrating that legislation burdensome to religion does not need to take the least restrictive means possible. Although no right is absolute, the ability for US citizens to exercise their religious beliefs while still participating in society is among the most foundational entitlements of the American experiment. This bill puts that right in jeopardy by valuing the mere notion of “public health and safety” over the assurances of religious liberty with no opportunity for exemption or special dispensation. In this case, I would argue that the bill is unconstitutional unless a clause is added allowing for religious-belief-based exemptions.