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Five years ago, I was nearing the end of my time at Georgetown Law School. It’s a Jesuit institution, and the student insurance policy did not cover contraception. We students found this unfair for many reasons — not the least of which that there are many medical reasons women (including married women, gay women, and women who are already mothers) need birth control.
Those women were suffering medical consequences as a result of not having coverage for the medication they needed; a friend of mine actually ended up in the emergency room. I was angry. And as a leader of the Law Students for Reproductive Justice group on campus, I was determined to change the policy.
So I went to Congress. At the time, the battle over the Affordable Care Act was ongoing. I testified before members of Congress about the reasons women need coverage for birth control. My argument focused on the health reasons for birth control — it was important to shed light on the fact that millions of women were being denied affordable access to a fundamental medical need. I didn’t want any other women to wind up in the emergency room like my friend.
We won that round of the battle. The law would go on to save American women more than $1 billion in birth control fees. And a new compromise was put in place that balanced the right to access birth control with the religious affiliations of a place like Georgetown. These institutions wouldn’t have to pay to cover contraception if it went against their beliefs — but insurance companies would be mandated to step in and cover those costs for students like me who might need it.
Millions of women across the country celebrated our win and the expanded health care access it ensured. But I fear that back then, some did not fully grapple with the question of balancing religious freedom and requiring birth control access, instead focusing on the impacts of access to birth control as an argument.
Now Donald Trump’s administration is considering an extreme rollback of birth control coverage on the grounds of religious liberty. Under this new rule, any corporation or nonprofit could deny coverage on the basis of religious belief, with few restrictions.
Now we must answer that religious liberty claim head on. Not only for the sake of millions of women who could lose affordable access to birth control, but because of the damage such an illegitimate claim could do to our constitutional guarantee of religious liberty — a right that needs protecting in an era in which our president wants to ban entry to the country by a group of people based on their religion.
The religious liberty compromise the Obama administration struck
The Obama administration found what I believe to be an appropriate balance between providing affordable health care and accommodating religious concerns. Houses of worship were not required to provide insurance coverage for birth control if it violated their sincerely held religious beliefs. And the administration created a process by which hospitals, universities and other nonprofit institutions affiliated with a religious entity could submit an exceedingly simple one-page form indicating their objection to providing birth control coverage.
Instead, their insurance carrier would provide the coverage without the involvement of the religiously connected institution and without using their funds. The institutions wouldn’t have to do anything they felt was against their religious beliefs, but women using the health insurance those institutions provided would still have affordable access. Win-win.
Unfortunately, ultra-conservative legal organizations and judges were not satisfied. They contended that because a one-page form was too burdensome, universities and other nonprofit institutions affiliated with a religious entity should be able to deny birth control coverage to their employees. And they went further. They also established in the Supreme Court case Hobby Lobby v. Burwell that a closely held for-profit company with no public religious identity or aspect to its business could deny its employees insurance coverage for birth control for no reason other than the personal religious belief of the owner.
When Hobby Lobby was decided in 2014, the ruling was supposed to apply only to closely held companies. Fans of restricting access to contraception argued this definition was only for small family businesses that may have deeply religious owners. Still, Pew reported at the time that by IRS definitions, there may be more than 4 million such businesses employing 29 million Americans, meaning even an allegedly narrow ruling potentially affected a significant number of women.
The ruling stopped there. When I argued it was a slippery slope, I was accused of overreacting. It wasn’t like the Court declared a for-profit, publicly traded Fortune 500 company with no religious mission could deny its employees birth control coverage on religious grounds. That would be absurd! And yet this is not too absurd for the Trump administration.
The Trump administration is radicalizing the religious liberty exemption
A leaked document shows us the Trump administration’s likely new rule on contraception coverage. Vox reported:
The Trump administration’s draft regulation would allow any employer to request an exemption based on moral or religious objections. This would widen the exemption to apply to any company from a small, religiously affiliated business to a large, publicly traded company.
The new draft rule from the Trump administration greatly expands the definition to any for-profit or publicly traded corporation. This raises a new round of questions and concerns. Exactly what religion would a publicly traded corporation like Bank of America or Coca-Cola or General Electric have? The religion of the majority of shareholders? Its CEO? Its board? What if an employee takes a job at an agnostic telecommunications firm, but then new leadership is hired and the company announces it has a new religion affecting health care coverage for all employees?
It’s important to note that the new draft rule was very deliberately crafted. It is a 34,000-word opus that makes it clear the government is not making this decision based on facts or science but rather on the perceived religious burden, and in the sole interests of any for-profit or publicly traded company. This was not directed by political newbies, like much of the fumbling of the Trump White House. This is an action likely instigated by Vice President Mike Pence and other conservative Republicans with extreme views on the role of women and reproductive rights in our society, using the federal government to enact their extreme agenda.
The consequences of denying comprehensive health care coverage to women are severe. Under the Affordable Care Act, the country was making unprecedented gains in affordable or no-cost contraceptive access for millions of women. It is estimated that in 2013 alone, American women saved more than $1.4 billion. Scant other medicine is so widely needed or used — more than 90 percent of American women will use contraception in their lives. When contraception use increases, unintended pregnancy rates decrease (something one would think the Pence wing of the Republican Party would applaud).
The use of a religious liberty claim to advance this extreme anti–reproductive rights agenda disturbs me, not only as a person who cares about women’s health but as a person of faith and a person who values religious liberty. I come from a very religious family in which I attended church every Sunday, spent summers at church camp, was a member of the church youth group, served as a youth member of the church advisory council, and even led services at times. My father became a pastor after I left home.
I still consider myself a Christian, but my husband and his family are Jewish. We recently traveled to Israel to understand more about both of our faith traditions. Visiting Yad Vashem, the Holocaust memorial museum in Jerusalem, as well as observing the challenges faced by Muslim Palestinians impressed upon me once again the importance of religious liberty for all faiths.
There are legitimate religious liberty claims under our Constitution. People practicing a variety of religions in America have real reasons to be concerned about their constitutional rights and whether this administration will protect them (see: the Muslim travel ban). Allowing Citibank or Nike or Sprint to deny birth control coverage to employees is not a valid religious liberty concern. Treating that claim as legitimate and worthy of protection cheapens our nation’s commitment to true religious liberty.
We live in a time when our president campaigned on, and has attempted to enact, discrimination based on religion. Religious liberty protections are critical to protecting us from the reckless actions of the Trump administration. This is not a time when we can allow them to be weakened or lose public support.
We need to grapple with the hard questions when it comes to religious freedom and birth control
In the face of anticipated rollbacks in health care coverage being proposed by the Trump administration in the name of “religious freedom,” we must be willing to engage with the hard question of how to balance an individual’s need to control her own health choices (which requires affordable access) with the sincere religious views of houses of worship, religiously affiliated nonprofits, and other similar institutions providing insurance coverage.
Allies on the left have seen for years now that the religious liberty argument was going to be the new line of attack to legalize discrimination against all types of marginalized communities, but I’m afraid we haven’t found a coherent, consistent response that directly answers the religious liberty claim.
We should loudly and specifically assert that on the question of insurance coverage of birth control, the Obama administration’s rule struck an appropriate balance that should be returned to. It exempted houses of worship as explicitly and primarily religious institutions, and it allowed religiously affiliated nonprofits to remove themselves from the provision of insurance coverage while ensuring that their employees and students had coverage. It did not pretend that for-profit businesses had religious beliefs, as the Supreme Court did, or that publicly traded corporations had religious beliefs, as the Trump administration now does.
This arrangement provides a template for addressing other such claims of religious liberty that interfere with the rights and benefits guaranteed to employees or students. Exempt houses of worship. When possible, limit involvement of religiously affiliated nonprofit entities, while guaranteeing that employees and students are protected. Do not expose every employee or student to potential discrimination and cheapen the concept of religious liberty by pretending that for-profit institutions have a religious belief.
My congressional testimony from five years ago is burned into my memory. While many people testify before Congress every week and go unnoticed, my testimony caught the attention of some far-right-wing pundits. I was the focus of a lot of ugly, sexualized attacks by Rush Limbaugh and other conservative commentators. The experience was difficult, and I felt bad for the stress it caused my family, but I don’t regret my testimony for a minute.
We’ve made important progress on women’s affordable access to reproductive health care in the past five years; let’s not let this administration erase that with a claim of religious liberty that is too absurd to be worthy of our Constitution. Moreover, let’s use this moment to have a national conversation about an appropriate way to ensure religious liberty while not allowing discrimination.
Sandra Fluke is a social justice attorney based in Los Angeles and the state director for an advocacy nonprofit. She is a graduate of the Georgetown University Law Center and former candidate for California state Senate.
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