Bad Science and Failed Freedom Protections in the HHS Mandate

February 5th, 2013

The controversy over the Department of Health and Human Services (HHS) contraceptive mandate is bound to increase, thanks to its latest proposed fix announced last Friday. The rules proposed to be amended are those issued by HHS last year, requiring employers—including religious institutions and individuals and corporations that embrace religious principles—to provide, without co-pay, contraceptives, sterilization, and emergency contraceptives that can destroy a human embryo.

The original mandate came when HHS fully adopted the recommendations of the Institute of Medicine (IOM) report “Clinical Preventive Services for Women: Closing the Gaps.”  This report claimed that American women were suffering a crisis of “unintended pregnancy,” a crisis that could be resolved most effectively by requiring employers to provide women, free of charge, the “full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity.” ¹

With last Friday’s rules, the government is claiming that after a year of a mostly losing record of religious freedom lawsuits, it has struck the perfect balance between two urgent goals: getting contraception into the hands of as many American women and girls as possible, and protecting Americans’ religious freedom.

The truth of the matter is quite different.

There are myriad problems inherent in the new rules. They still fail to protect the legally guaranteed religious freedom of religious institutions, for-profit employers, insurers, non-religious non-profit organizations, and individuals. Religious liberty is protected not only by the First Amendment of our Constitution, but also by the Religious Freedom Restoration Act.

They fail to understand the full nature of the free exercise of religion—that religion, whether practiced individually or by a group, requires being able to integrate one’s actions with one’s religious beliefs, especially when these don’t attack but advance the common good—here, the health and well-being of women and girls.

They trample on parents’ constitutionally-protected right to direct the upbringing of their daughters. And they reveal, still, an irrational zeal for a narrow category of drugs and devices, thus evincing a narrow and harmful understanding of women’s freedom as coincident with sexual expression.

Moreover, while the government tries to make us think that the new rules are hospitable to religious freedom, we shouldn’t overlook its continued failure to admit the bankruptcy of the mandate’s grounding “medical” claim: that unintended pregnancy is a kind of health crisis properly resolved with free contraception and early abortions.

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Helen Alvaré is an Associate Professor of Law at George Mason University School of Law, where she teaches Family Law, Law and Religion, and Property Law.  She publishes on matters concerning marriage, parenting, non-marital households, abortion and the First Amendment religion clauses.