Why the Murray-Udall Contraception Bill Strikes the Right Balance
Under the Affordable Care Act (ACA), most health insurance plans must cover preventive services without requiring a co-pay from the patient, including immunizations, cancer screenings, and all forms of contraception that are approved by the U.S. Food and Drug Administration (FDA). But the Supreme Court’s recent decision in the Hobby Lobby case said that a closely-held corporation (which includes over 90% of U.S. businesses) cannot be required to include coverage for birth control in their employees’ insurance plans if doing so goes against the owner’s religious beliefs. Because this decision was based not on the Constitution but on the Court’s interpretation of a law passed by Congress, the Religious Freedom Restoration Act (RFRA), Congress can act to clarify its intention and bring the law back to where it was the day before Hobby Lobby.
That is exactly what a new bill championed by Senators Patty Murray (D-WA) and Mark Udall (D-CO) bill would do: ensure that women have access to the preventive health care they need while also guaranteeing that no religious organization is forced to provide contraceptive coverage in violation of their beliefs. Third Way stands behind this legislation, because we believe it appropriately recognizes the difference between for-profit businesses and non-profit religious organizations, it follows the best practices of existing state contraception policies, and it adheres to the deeply held American values at the heart of this issue—including the desire by Americans across the political spectrum to reduce the need for abortion.
1. Our country has always drawn a firm line between for-profit businesses and non-profit religious organizations, and the Murray-Udall bill does just that.
The bill does not treat religious charities, schools, and hospitals the same way it treats secular for-profit businesses owned by religious individuals—and rightly so. Americans don’t think businesses in the stream of commerce should get special exemptions from the laws based on the religious beliefs of their CEOs. In 2013, in conjunction with the Human Rights Campaign and Anzalone Liszt Grove, Third Way undertook extensive research to gain deeper insight into how Americans feel about religious exemptions, and we found huge differences in the way the country views religious exemptions for non-profit religious organizations and those which would extend to for-profit businesses.1 Our focus group participants drew a clear line, with one saying that business leaders “are representing many individuals who may or may not agree with your position.” Another suggested they should simply “bite your tongue (sic) and do your job.” This firm line in public opinion matches closely with distinctions that have existed in American law for decades, which treat non-profit religious organizations differently than for-profit businesses in many contexts.
The Murray-Udall bill respects this difference by allowing religiously affiliated non-profit employers to opt out of the coverage requirement, while requiring all for-profit companies in the stream of commerce to comply with the law. It’s important to recognize that under the bill, no one has to change their beliefs—they just can’t use those beliefs to deny their employees access to no-cost contraception. The legislation puts women in control of their own healthcare decisions according to their religious beliefs, not their employers’. This is consistent with both public opinion and practice, which are strongly supportive of contraception access and use:
- 99% of American women ages 15-44 who have had sexual intercourse have used contraception at some point in their lives;2
- Before the ACA contraceptive coverage requirement went into effect, 90% of employer health insurance plans already covered contraception without complaint—including those offered by the Hobby Lobby company;3
- 95% of Americans—including 92% of Republicans—consider use of contraception to be a form of personal responsibility;4
- 58% of women currently using birth control actually cite health reasons other than pregnancy prevention for its use;5 and,
- 57% of Americans think that privately held corporations should be required to provide their employees with health insurance plans that cover contraception without a co-pay—including 64% of white mainline Protestants, 56% of Independents, 72% of African-Americans, and 60% with a high school education or less.6
2. When it comes to exemptions for religious organizations, the Murray-Udall bill takes the lead from carefully crafted state policies.
Currently, 28 states require health insurance plans to cover contraception, though many still require cost-sharing. Twenty of those states have some sort of religious exemption or accommodation, though they vary in application from those limited to only houses of worship (CA, NY, OR), to those that also cover some religiously affiliated schools and churches (AR, ME, MA, MI, NJ, NC, RI), to those that additionally exempt non-profit religious organizations and at least some hospitals (AZ, CT, DE, HI, IL, MD, MO, NM, WV). Only one state (IL) exempts secular entities that object to contraceptive coverage for moral or religious reasons.7
Because the ACA’s initial religious exemption for contraceptive coverage was limited to only institutions like houses of worship, it was not as generous as many of these existing state policies. Under the original federal definition of “religious employer,” non-profit religious organizations (and even some churches) wouldn’t have qualified for the exemption if they employed or served large numbers of people from different faiths. In order to answer concerns raised by some of these religious non-profits, the Obama Administration decided to revisit the initial definition and clarify that it was never intended to exclude churches that, for instance, ran soup kitchens that served people of many faiths.8 The Administration then re-wrote the definition of religious employer to ensure that churches and non-profit religious organizations, even those providing social services to or employing people of different faiths, could opt out of providing the coverage if they had a religious objection to contraception, while ensuring that their employees still had the option to receive the coverage without co-pay. That more generous accommodation is the one the Murray-Udall bill would write into law.
The bill most closely mirrors the laws of Connecticut, West Virginia, and Hawaii, where insurance companies must cover contraception care for employees of objecting religiously-affiliated organizations. However, it goes even further to address the concerns of religious organizations than those state laws, since unlike in those states, under the ACA:
- Religious employers have no responsibility to tell their workers how to obtain contraceptive coverage;
- The insurance companies themselves must reach out directly to each of the organizations’ employees; and,
- Those workers then decide for themselves whether to take advantage of that coverage.
3. The Murray-Udall bill adheres to American values, including by reducing the need for abortion.
Access to birth control is the best way to reduce abortion—and no-cost contraception has been shown to decrease abortion rates by up to 78%.9 That’s a policy on which pro-life and pro-choice Americans can agree: 79% say anti-abortion policymakers should support contraception because it decreases unplanned pregnancies—including 71% of Republicans and 80% of Independents.10 Despite what some claim, birth control is not always easily accessible—and for many women, without the ACA’s coverage requirement, it is cost prohibitive. Thirty-four percent of women report struggling to afford birth control at some point in their lives, and 55% of young women—who are most at risk of unintended pregnancy—have experienced a time when they were unable to use birth control consistently because of the cost.11 Allowing those women consistent access to effective birth control is the number one way we can reduce the need for abortion in this country. That is why passing the Murray-Udall bill is so crucial.
The legislation strikes the right balance because it addresses the moral complexity inherent in public policy decisions regarding religion, contraception, and personal autonomy by adhering to the values we hold dear. America was founded on the ideal of religious liberty, and that principle is a major tenet of our national identity. The bill respects that value by ensuring that non-profit religious organizations can opt out of providing contraceptive coverage to their employees when doing so would violate their sincerely held religious beliefs. The accommodation in this legislation is based on some of the broadest in state law, and in some ways it goes even further by excusing religious organizations from even providing referrals.
But religious liberty is not the only value at play here—no one’s boss should have veto power over a person’s ability to make decisions about his or her health care. The bill protects that principle without requiring religious organizations to violate their beliefs. That is a deeply American principle.
According to estimates by the Department of Health and Human Services, as of June 2014, 48.5 million American women were benefiting from no-cost preventive care under the ACA—including access to contraception without co-pays.12 The contraception rules in the Murray-Udall bill are the right ones—balanced and respectful of both religious institutions and female employees who need preventive care. It codifies a policy that ensures no church or non-profit religious organization will have to violate its beliefs by covering contraception care, but it also ensures that their employees are not left without access. The bill rightly distinguishes between non-profit religiously affiliated institutions and organizations—like Catholic schools and charities—and for-profit businesses in the stream of commerce, it follows the best practices of existing state laws with generous exemptions, it stays true to our nation’s values, and it offers the promise of significantly reducing the need for abortion. We hope Congress will act to pass it with all due haste.