The Catholic University of America

This article was first published in the Aug. 1, 2011, issue of America.

Aug. 1, 2011

Religious Liberty and Conscience Protection

An open letter on the Institute of Medicine's health care proposals


By John Garvey

About four months after he became President, George Washington had an exchange of letters with a group of Quakers in five states. They had written him for some assurances that the new government would protect their religious liberty. Here is what our first president said in reply:

I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.

This assurance extended even to the Quakers’ refusal to fight in the military, an exemption that the commander-in-chief acknowledged with some grumbling. I think it is a point of pride for Americans that, even with the differences we have had recently over many issues of health care, we adhere so carefully to Washington’s promise of conscientious accommodation. For almost 40 years, the Church Amendment has protected conscientious objection to abortion and sterilization where federal funds are involved. For 25 years, our foreign aid programs for family planning have said that “no applicant shall be discriminated against because of [a] conscientious commitment to offer only natural family planning.” In the District of Columbia where I live, Congress has stipulated for more than a decade that “any legislation enacted [to mandate contraceptive coverage] should include a "conscience clause" that provides exceptions for religious beliefs and moral convictions.” The 2003 Act for United States Leadership Against HIV/AIDS gives religious organizations a right to participate fully, and promises that they need not “participate in any program or activity to which the organization has a religious or moral objection.”

I worry that this distinguished record of liberal toleration might soon come to an end. The Patient Protection and Affordable Care Act authorizes the Department of Health and Human Services to draw up new lists of “preventive services for women” that must be included in private health plans. Last week the Institute of Medicine (a nonprofit organization; it’s the health arm of the National Academy of Sciences) issued a set of recommendations to HHS about what such preventive services might comprise. Though the Institute might have addressed many important issues, it focused mainly on reproduction and contraception. It suggested that HHS mandate coverage of surgical sterilization, all FDA-approved prescription contraceptives (including drugs like Ella that are targeted at women who may already have conceived), and “education and counseling” to promote these services. HHS will decide soon (perhaps as early as August 1) whether to adopt these recommendations.

Americans differ over whether the services recommended by the Institute of Medicine are bad things. But the issue before HHS is not whether to allow sterilization, contraception, and abortion. It is whether to order insurance companies to cover these services, and employers and employees to pay for them, even if they view them as morally wrong. It is in just this situation that the respect for religious freedom comes into play. Most Americans view service in the armed forces, especially in times of trouble, as a good thing. Most are willing to sanction even the taking of enemy lives if it is necessary to protect our country and those we love. Quakers do not, and from the beginning of our history we have treated their “conscientious scruples...with great delicacy and tenderness.”

It is unfortunate that the new health care law enacted in 2010 does not include a conscience clause addressing this issue. But it is natural and appropriate that HHS should consider our historical commitment to religious liberty in deciding what kinds of services to mandate. The administration promised that Americans who like their current health care coverage could keep it after we enacted the new reform. Employers, employees, and issuers who have moral and religious objections to sterilization, contraception, and abortion are now free to have health care coverage that excludes these practices. It would break both old and new promises to deprive them of that liberty.

I hope HHS does the right thing in considering the Institute’s proposals. If it does not, Reps. Jeff Fortenberry (R-NE) and Dan Boren (D-OK) have introduced the Respect for Rights of Conscience Act (H.R. 1179) to address the absence of a conscience clause in the Patient Protection and Affordable Care Act. The bill would prevent any new mandates introduced to implement the health care act from infringing upon the rights of conscience that Americans currently enjoy. It is a measure that everyone who cares about religious liberty can support.