Federal and state laws intended to protect religious freedom are increasingly being used by social conservatives to impede access to reproductive health services like abortion and contraceptive care, according to a new analysis in the Guttmacher Policy Review. The analysis makes the case that more clarity and protections are needed to balance competing interests and prevent potential abuse of these laws.
“The term ‘religious liberty’ has become highly politicized and distorted,” says Adam Sonfield, author of the analysis. “Social conservatives have converted this concept from a shield against government intrusion to a sword to achieve some of their movement’s long-standing political goals—including undermining access to reproductive health services.”
Sonfield documents how current debates, and in particular, litigation and legislative efforts around the Affordable Care Act’s contraceptive coverage guarantee and LGBT rights, have helped to highlight the extreme nature of social conservatives’ demands. Using laws like the federal Religious Freedom Restoration Act (RFRA), social conservatives now assert that any purported burden on religious liberty is inherently unacceptable, regardless of the harm to others or how small the actual burden might be.
The issue will gain attention once more when the Supreme Court hears Zubik v. Burwell, yet another case involving the ACA’s contraceptive coverage guarantee. Dozens of employers have sued the Obama administration, arguing that it has not gone far enough to accommodate employers with religious objections. At issue is whether employers who are eligible to be accommodated so that they do not have to pay or arrange for contraceptive coverage can be required to notify their insurance company of their objection. The insurer, in turn, then separately provides employees with that coverage at no additional cost.
For potential ways to reduce the harm of RFRA and similar state laws, Sonfield points to examples from the reproductive health field. Strategies to mitigate harm include setting explicit limitations on the scope of a religious exemption, for instance, by limiting it to certain institutions or job categories. These strategies also include setting specific obligations on the part of those using an exemption, for example, requiring that providers who refuse to offer certain health services give clear, up-front notice to patients.
“Advocates for sexual and reproductive health and rights need to, at the very least, push policymakers to incorporate more explicit guidance in their laws and regulations,” says Sonfield. “That said, none of these strategies will do anything to truly advance reproductive rights—but they are necessary so that access to reproductive health care does not become an empty promise.”