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Contraception: Much ado about freedom and privacy

This article first appeared in the St. Louis Beacon, Feb. 24, 2012 - The Obama administration's initial proposal to require Catholic hospitals to cover contraceptive services for employees has turned into a confused, wide-ranging debate about religious freedom, freedom of conscience, women's health and a woman's right to privacy.

All of these emotional issues have become ingredients of the presidential election debate with Republican candidates accusing the president of waging a war on religion and some of the president's allies accusing Republicans of waging a war on women's health.

Beneath this debate are half a century of U.S. Supreme Court decisions, the names of which sometimes come tumbling from the candidates' mouths during debates, even though the case names are hardly everyday conversation.

Griswold v. Connecticut is one court case sometimes mentioned by the Republican candidates. In this 1965 decision, the court ruled that state laws against contraception - common at the time - interfered with a married woman's right of privacy. The justices weren't sure where to find that right of privacy in the Constitution. In an opinion that became widely ridiculed, Justice William Douglas said it was to be found in the "penumbras," or shadows, of several portions of the Bill of Rights.

Other justices said a woman's right to control her body was found in the "liberty" protected by the 14th Amendment's due process clause. That understanding of liberty became the basis of Roe v. Wade eight years later.

Rick Santorum has said he doesn't believe in contraception but wouldn't outlaw it. He also says, however, that Griswold was wrongly decided. If Santorum-appointed justices were to reverse Griswold - a highly unlikely proposition - states could once again outlaw contraceptives.

The claim that Obama is fighting a religious war grows out of a recent Supreme Court case and the Obama regulation on contraceptive services. In the Supreme Court decision, the court unanimously decided that a teacher at a Lutheran School was covered by the so-called ministerial exception to job discrimination laws.

Employment discrimination laws don't protect ministers from discrimination by their churches. The question in the case was whether a teacher who taught secular subjects most of the day but also taught a religion class could be fired for claiming the protection of federal disability laws. The Obama administration said the teacher was not covered by the ministerial exception. The Supreme Court said the teacher should be included but did not say how much further it would extend the exception's reach. In this week's presidential debate, Mitt Romney cited the Obama position as an example of his "attack on religious conscience."

But the spark that lit the religious freedom controversy was the Obama regulation under the new health care law that would have required religiously affiliated hospitals and similar organizations to include contraceptive care in health coverage for their employees, regardless of the employee's religion.

The Roman Catholic Church, with the Conference of Catholic Bishops and its leader Cardinal Timothy Dolan taking the lead, maintained that this rule would have violated the church's freedom of religion under the First Amendment because it would force the church to subsidize an act it considers wrong.

Ironically, a decision written by Justice Antonin Scalia, a leading conservative and a Catholic, may mean that the church's freedom of religion claim is not supported by the Constitution.

In the 1990 decision Employment Division v. Smith, the court refused to protect the religious freedom claim of Native Americans seeking to smoke peyote during religious observances. Justice Antonin Scalia wrote that the free exercise of religion does not relieve religious institutions of the obligation to obey valid, neutral laws of general applicability.

Many legal experts say the original Obama rule would be considered a law of general applicability.

Congress passed the Religious Freedom Restoration Act to restore religious liberty lost by Scalia's Smith opinion. That law bars a federal regulation if it places a "substantial" burden on a religious practice and there is a less burdensome way for the government to accomplish its goal.

Even if the original Obama rule failed this test - which is far from certain - the revised one would probably pass it, legal experts say. Under the revised rule, insurance companies furnishing the health insurance at religiously affiliated institutions would be required to provide contraceptive care. The church itself would not directly provide it.

David Roland, director of litigation for the libertarian Freedom Center of Missouri, wrote in an email that he is no fan of Smith, but doesn't think "the courts would have considered (the original) contraceptive requirement a violation of the First Amendment. ... As long as Smith remains good law, I don't see courts using the Free Exercise clause as a mechanism through which religious groups can obtain exemptions from generally applicable laws such as this."

Although some Catholic organizations seemed mollified by the Obama compromise, the Catholic Bishops are not. They say they will end up having to indirectly pay for the medical services to which they object. They also argue that private employers should have a right of conscience to refuse to provide contraceptive care.

Michael A. Wolff, former judge of the Missouri Supreme Court and a Saint Louis University law professor, said he found that an approach like the Obama compromise worked in Missouri. He wrote in an email:

"When I was chair of the Missouri Consolidated Health Care Plan, the medical insurance plan for public employees ... we mandated contraceptive services and care with no co-pays and no deductibles. No insurance company complained because they saved money. An analysis five years later by the Department of Health statistician found that state employees had a significantly lower birth rate than the population as a whole -- this probably is not solely because of the state policy ... but it was significant. So, 'forcing' insurance companies to cover contraception forces them to incur lower costs. And remember, an insurance company exists for one purpose -- to make money -- not to promote religious beliefs. Obama's tweak was where the policy should have been in the first place."

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.