Americans of all classes, regions and religions strongly support access to contraception. The vast majority of Catholics, like me, are no different. Part of this support is due to a strong belief that individuals should have the liberty to make reproductive decisions free from government interference. And, data demonstrates that better access to birth control reduces abortions.
That’s why voters overwhelmingly oppose “personhood” amendments that would potentially jeopardize the legality of FDA-approved birth control. But, the Obama Administration’s recent decision to require contraception as a mandated insurance coverage, even for religious employers whose church doctrine opposes birth control, goes too far. Even given a strongly pro-contraception public, Americans also believe that government should not invade the province of churches to decide their own religious doctrines.
The current controversy is actually based on two decisions made by the Administration. I agree with one of them and disagree with the other.
In passing the Affordable Care Act, Congress stipulated that employers must offer health insurance covering women’s “preventive health services” or pay a penalty to cover uninsured people. The definition of women’s “preventive health services” was not spelled out. So, the Administration convened a medical panel through the National Academy of Sciences to define the term. The panel concluded that access to FDA-approved birth control was necessary. I strongly support this decision.
In fact, twenty-eight states have contraception mandates. But, most states with contraception mandates also recognize that religious employers whose church doctrine opposes birth control need to be exempted. To its credit, the Obama Administration created a “religious employer” exemption based on a provision found in the laws of Oregon, New York, and California. But, the exemption is too narrow. It needs to be expanded so that church hospitals, social service agencies and schools are not forced to violate religious doctrine.
The current rule says that a religious organization is exempt from the contraception mandate only if birth control violates church doctrine and the organization primarily employs and serves members of the religion. So, a Catholic Charities office, or a Baptist hospital, or a religious school that compassionately employs and serves people of all faiths, is required to provide contraception even if that violates church teaching.
This result is a no-win situation. It would require a religious institution to drop all insurance coverage and pay a penalty, or stop employing and serving people of different faiths, in order to follow church doctrine. This creates a serious First Amendment problem.
The solution is straightforward. The exemption needs to be broadened so that an institution is exempt if it determines that contraception violates religious doctrine. Or, the Administration, based on the experience of the numerous states that have already dealt with this issue, needs to give these institutions a clear “safe harbor” by explaining what they can easily do under current law to comply with the law without violating their own doctrine. Catholic institutions in many states with contraception mandates have already figured out how to do this. The Administration needs to explain these solutions and make clear that institutions following these steps are in full compliance with the law. Simply telling institutions that they have a year to “figure it out” is insufficient.
Americans support contraception and they support religious liberty. We can find a solution that respects both positions. And we should do it soon.
Tim Kaine is a 2012 candidate for the U.S. Senate. He has served as Governor of Virginia from 2006 to 2010 and Chairman of the Democratic National Committee from 2009 to 2011.
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