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.

Tiny Church Awaits Big Decision

A small Christian congregation of just 48 members is awaiting a Supreme Court decision that would overturn a ruling outlawing the use of public schools for their Sunday services. Currently, the policy of the New York Board of Education regarding public school usage allows all community groups, including religious ones, to utilize the property; however, the only restriction is that worship services are not allowed to be held. This case involving the Bronx Household of Faith has lasted 17 years, when the church was first denied a permit to hold their worship services at a local public school by the New York Board of Education in 1994. In 1995 church pastor Robert Hall heard Alliance Defense Fund attorney Jordan Lorence talking about barriers to religious rights on the radio. Hall called up Lorence, informed them of their current situation. The ADF, which champions “the legal defense of religious freedom, the sanctity of life, marriage and the family,” took the case, and the case has been ruled on, appealed, reversed and then reversed again since 1995. In 2002, however, the Board of Education stopped enforcing the regulation, and the Household of Faith has been holding their Sunday services at P.S. 15 ever since.

Once again, we come to a crossroads: do we enforce the establishment clause at the extent of limiting free exercise; or do we champion the free exercise of religion while potentially violating the establishment clause? Due to the fact that the current policy allows “prayer, singing hymns, religious instruction, expression of religious devotion or the discussion of issues from a religious point of view,” but does not allow religious worship services to take place in public schools, it ultimately comes down to drawing a line and distinguishing between the former and the latter. The ADF maintains that this distinction between religious expression and worship is arbitrary. “You can have singing and prayer and Bible study, with all the elements of what people traditionally understand a worship service to be, but you can’t have a worship service?” Lorence asks. However, on the other side of the spectrum, the New York Civil Liberties Union believes that, “when a church sets up shop in a public school in a manner that conveys the appearance that the church is part of, or officially favored by, the school, it seems to run afoul of the separation of church and state.” Furthermore, many others in favor of the policy prohibiting worship services from public schools maintain that when a church holds a worship service in a school auditorium, that auditorium is transformed into a church for the duration of the worship.

Personally, I side with the NY Board of Education. I find the policy to be extremely fair and, quite frankly, more inclusive and sympathetic to religious groups than I would personally be if I was writing the policy. I know we have brought a similar issue like this up in class, and I think the distinction between religious expression and religious worship to be far from arbitrary. Churches, in particular, are known as “Houses of God.” Services are held in “Houses of God.” I truly believe that once you hold a worship service in a public school auditorium, you are metaphorically transforming the meeting space into a “House of God.” Also, since the children that attend these public schools are impressionable, they may not be able to tell the difference between the church and the school. In the article we read in class regarding these similar issues, one girl asked her father if “the church was part of [her] school.” They effectively run the risk of having the children see the two institutions as one in the same. Furthermore, if this policy is overturned and churches are allowed to hold services in public schools outside of school hours, it would not be neutral in practice. While technically, all religious groups are allowed to apply for permits, schools facilities are often only available on Sundays when other school groups are not using the facilities. This, in reality, only caters to Christian groups, since Muslim and Jewish groups hold their worship services on days that are not Sunday.

Ultimately the best way to maintain equality across all religions (which I believe to be the most important tenet of religious and political/legal interaction) is to restrict religious services from occurring in public schools. The propensity for perceived establishment is too high, and the “neutrality” of the policy, if it were to allow worship services, is terribly lacking. Worship needs to be kept in houses of worship, and out of public schools.