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Lipton-Lubet: Contraception Mandate Doesn’t Break New Ground

In the past several weeks, as a nation, we’ve been hit by an endless barrage of commentary on the new rule requiring insurance companies to cover contraception with no co-pay. Who would have thought that in 2012, contraception — something 98 percent of women use at some point in their lives — could set off such a firestorm?

Last week, the Obama administration offered a solution that we hope calms the embers.

For all the excitement, you’d think that something dramatic had happened when the Health and Human Services Department earlier this year issued a rule to ensure that all new health insurance plans — except those held by churches and other houses of worship — would include coverage for birth control.

But there wasn’t actually a lot new there: 28 states already require insurance plans to include contraception, several with the same house-of-worship exception and several with no exception.

And when it came to the Constitution, there was nothing new at all. Nothing in the rule prevents anyone from espousing their beliefs about birth control or attempting to persuade others not to use it. The high courts of California and New York have rejected claims that requiring coverage of contraception somehow violates the First Amendment, and our courts have long held that institutions that operate in the public sphere are not above the law.

But as we all quickly discovered, none of that mattered to the U.S. Conference of Catholic Bishops and some other religious leaders. They pushed hard to expand the house-of-worship exemption to include institutions such as religiously affiliated hospitals and universities that hire and serve people of many faiths. They made it clear, in no uncertain terms, that they wanted these businesses — along with Taco Bell — to get a free pass to impose one set of religious beliefs on employees who might not share them. In essence, they pulled out all the lobbying and public relations stops and demanded a license to discriminate in the name of religious liberty.

While the Obama administration was on solid legal and popular ground with its initial rule, last week’s modification should have put to rest these complaints from the right.

Under the modification, women will continue to have access to the health insurance coverage they need, and employers with religious objections to contraception will be able to wash their hands of the whole affair. Religiously affiliated universities, hospitals and social service agencies will be able to opt out of paying for contraceptive coverage for their employees, and instead, insurance companies will be required to reach out to these employees and provide them full access.

The arrangement should ensure that a nurse who happens to work at St. Vincent’s will have access to the same health care coverage that her friend who works at a nearby community hospital has. That’s only fair: They both work for hospitals that have religiously diverse workforces and open their doors to the public. It’s hard to imagine how anyone could object to that.

But the bishops and their allies aren’t satisfied. They’re back on the attack, calling on the administration and Congress to abandon the entire birth control rule, so that no woman will have the benefit of this essential coverage with no co-pay, which is what this fight has been about the whole time: rolling back access to birth control under the name of religious liberty.

True religious freedom gives everyone the right to make personal decisions, including whether to use birth control, based on our own beliefs and according to what is best for our health and our families. It fiercely protects the rights of all of us to practice our faith. It does not, however, give anyone, including the bishops, the right to impose their beliefs on others.

It is time to put the vitriol of the past several weeks behind us and start focusing on ensuring that the full promise of the new health care law becomes a reality for those who need it most.

Sarah Lipton-Lubet is a policy counsel for the Washington legislative office of the American Civil Liberties Union.