{"id":1143,"date":"2012-03-02T21:34:48","date_gmt":"2012-03-03T02:34:48","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=1143"},"modified":"2015-10-02T15:24:21","modified_gmt":"2015-10-02T15:24:21","slug":"conscience-amendment-defeated-in-senate","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/03\/02\/conscience-amendment-defeated-in-senate\/","title":{"rendered":"“Conscience Amendment” Defeated in Senate"},"content":{"rendered":"

By Sushila Rao<\/p>\n

<\/em>Voting mostly along party lines, the Senate today voted to defeat the so-called Conscience Amendment, which embodied the Senate Republicans\u2019 response to the 2010 Patient Protection and Affordable Care Act\u2019s\u00a0requirement\u00a0that\u00a0group health plans must include \u201c[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education\u00a0and counseling for all women with reproductive capacity.\u201d \u00a0The Obama Administration later offered an \u201caccommodation\u201d for religious institutions whereby, in case\u00a0a religious institution decides to opt-out and declines to provide coverage that includes contraceptive services, the insurance company would have to contact the\u00a0concerned\u00a0woman directly and offer her contraceptive coverage free of charge.\u201d \u00a0This compromise has been largely rejected as inadequate by conservatives.<\/p>\n

Many Senate Republicans have tried to couch their opposition to the policy as premised on the First Amendment right of employers, such as Catholic\u00a0hospitals, to free exercise of religion, rather than their aversion to\u00a0a woman\u2019s ability to access birth control.\u00a0 Proposed by Senator Roy Blunt (R-Mo.), the Conscience Amendment was attached to a highway bill, \u00a0and\u00a0would allow employers to opt out of a new federal health-care mandate for their employees if they have religious objections. \u00a0Federal lawsuits have also been filed challenging the constitutionality of the policy on the anvil of the Free Exercise\u00a0Clause of the First Amendment.
\n
\nHowever, under the controlling Supreme Court\u00a0precedent,\u00a0Employment Division, Department of Human Resources of Oregon v. Smith<\/em>, 494 U.S. 872 (1990),\u00a0the First Amendment argument is a non-starter. \u00a0InSmith<\/em>, Justice Scalia\u2014a devout Catholic\u2014decreed that religious liberty is an insufficient ground for being exempt from generally applicable laws. \u00a0Thus, the \u00a0State of Oregon could lawfully deny unemployment benefits to employees fired for the use of a prohibited drug\u2014peyote\u2014even as part of a religious ritual. \u00a0To hold otherwise would be \u201cto make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.\u201d\u00a0\u00a0The only avenue available to groups desirous of a religious exemption is, therefore, to lobby their elected representatives for one. \u00a0Such a rule requiring political vetting of exemptions certainly disadvantages unpopular or impecunious minorities, but was deemed preferable by the Court to the relative \u201canarchy\u201d that would ensue by mandating religious exemptions for everyone who wants one.<\/p>\n

Furthermore, given the above-mentioned accommodation offered by the Obama Administration, it is hard to see how the policy would amount to a prohibited burden on religion under the terms of the 1993 Religious Freedom Restoration Act (RFRA), which still applies to the Federal Government. \u00a0Section 3 (b) of the RFRA provides that government may substantially burden the exercise of religion only if it can demonstrate that the burden furthers a compelling\u00a0governmental\u00a0interest (in this case, women\u2019s health) and is the least restrictive means of furthering that interest. \u00a0Given that employers can opt-out of the scheme, leaving it incumbent on the insurance company to ensure the provision of contraceptives to female employees, the policy arguably does not substantially burden the employer\u2019s religious beliefs.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Sushila Rao Voting mostly along party lines, the Senate today voted to defeat the so-called Conscience Amendment, which embodied […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1143","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-ir","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1143","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1143"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1143\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1143"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1143"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}