Is the Blunt Amendment Constitutional?

The Obama Administration’s recently-announced accommodation to the Affordable Care Act’s contraceptive mandate should have put any controversy to rest.

Senator Roy Blunt

The Obama Administration’s recently-announced accommodation to the Affordable Care Act’s contraceptive mandate should have put any controversy to rest.

After all, the mandate’s modified religious exemption rule now covers those religious organizations that initially decried it. Like houses of worship, religiously-affiliated employers, such as Catholic hospitals or Jesuit universities, are no longer required to offer contraceptive care with their health plans. Instead, under the new adjustment, employees can get coverage of contraception without a co-pay directly from their insurance company, without cost to their employer. These organizations have a one-year transition period to find a complying provider.

It’s a modification applauded by religious groups and reproductive health advocates. Sister Carol Keehan, DC,  president and CEO of the Catholic Health Association of the United States (CHA) and Rev. Larry Snyder, Catholic Charities USA’s (CCUSA) president and CEO both believe the compromise is “a step in the right direction,” while the Center for Reproductive Rights’ (CRR) released a statement saying it “preserves the no-copay birth control benefit for all women.” It would seem that, after much debate, both sides have found themselves on the same page.

“It’s kind of hard to imagine what kind of objections could remain to that since, as previously described, the objection voiced was paying for the coverage,” says Sarah Lipton-Lubet, policy counsel at the American Civil Liberties Union (ACLU) Washington Legislative Office. “Now religiously-affiliated employers are just gonna be able to wash their hands of the whole business.”

Enter the United States Conference of Catholic Bishops (USCCB).

The USSCB, which represents church hierarchy and effectively acts as the Vatican’s U.S. lobbying arm, originally claimed the religious exemption rule was “too narrow” and should also exempt religiously-affiliated employers. It has since changed its tune. According to a February 10 press release, the USCCB is now concerned for the financial culpability and Constitutionally-protected religious liberty of “self-insured religious employers; religious and secular for-profit employers; secular non-profit employers; religious insurers; and individuals” (while objecting employers will not have any monetary responsibility, and contraceptives are, in fact, cost-effective and cost-neutral, there is concern that insurance companies will need to find a way to “pass on the immediate costs to their other customers”). The lack of clear religious liberty protection for these “key stakeholders…is unacceptable and must be corrected,” proclaims the USCCB. In fact, the organization writes, it wants the entire contraceptive mandate repealed.

It has been their goal all along, says Lipton-Lubet, “regardless of a woman’s health care needs and regardless of a woman’s own belief.”

“What this fight has really been about are efforts to roll back access to birth control, despite the fact that almost all women use it and despite the fact that institutes like the Center for Disease Control have acknowledged that family planning is one of the greatest public health achievements in the last century,” she says.

The USCCB has double-downed on their efforts to make this happen. And it seems Senator Roy Blunt (R-Mo.) may be their ticket—again.

The Blunt Amendment

Sen. Blunt, like the USCCB, finds President Obama’s accommodation unsettling, according to a statement he released earlier this month. In it, he says that the President “does not understand this isn’t about cost”—that this fight is actually about “the religious views of faith-based institutions.” All President Obama has done, claims Sen. Blunt, is “come up with an accounting gimmick” and nothing to satisfy “the fundamental constitutional freedoms that all Americans are guaranteed.”

“I’ll continue to work with my colleagues on both sides of the aisle to ensure that we reverse this unconstitutional mandate in its entirety,” he promises.

This is where the Blunt Amendment comes in.

The day before the Obama administration’s announcement, Sen. Blunt introduced his amendment as an attachment to a transportation bill, the American Fast Forward Financing Innovation Act of 2011 (S.1813) sponsored by Senator Barbara Boxer (D-CA). Initially, Senate Majority Leader Harry Reid (D-Nev.) blocked a vote on Sen. Blunt’s amendment.  He later agreed to allow a Senate vote, which could come any day now.

This amendment shouldn’t come as surprise to anyone who’s followed Sen. Blunt’s legislative history. In essence, it’s a version of the earlier Respect for Rights of Conscience Act of 2011 (S.1467), introduced by Blunt in August. And like Blunt’s original bill, which USCCB backs, his exceedingly broad amendment would potentially grant any employer or insurance provider the right to refuse health care service coverage without penalization or discrimination, if they claim doing so is counter to their moral or religious beliefs. Blunt’s amendment currently has 37 co-sponsors, including Senator Marco Rubio (R-FL), who also introduced his own bill, the Religious Freedom Restoration Act of 2012 [S.2043], the latter of which focuses specifically on health care exclusions and would allow all employers to deny contraceptive coverage on religious grounds. 

“What the Blunt Amendment would really do is give employers and insurers a license to discriminate and impose their beliefs on employees and policy holders who don’t share them,” says Lipton-Lubet. “That’s not what religious liberty is for but it is a logical conclusion of the Bishops’ request regarding birth control…It’s playing politics with health care run amuck.”

In other words: if Anthony Picarello Jr., the USCCB’s general counsel and associate general secretary for policy and advocacy, were to quit and open that Taco Bell after all, not only could he deny his employees coverage for contraceptive, but also cancer screening, STD testing, vaccinations, mental health services and medication, maternity care or whatever else he finds morally questionable.

This is an assertion Sen. Blunt has refuted through a recently-released fact-sheet. According to this document, existing state laws would not be affected by his amendment, nor would any law under the Affordable Care Act be addressed. Instead “it simply ensures that Americans are guaranteed the same rights and freedoms that they enjoyed before President Obama’s unconstitutional mandate”—meaning that employers with religious objections would be able to “negotiate” a needs-specific health care plan like they “had before ObamaCare” (Sen. Blunt’s office has not returned a request for comment sent prior to the release of the fact-sheet).

“This is a distorted view of religious liberty. It’s one that would grant virtually boundless rights to use religion to discriminate or ignore important health and safety protections, and importantly, one that has no basis in law or the Constitution,” says Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief.

“As far as religious freedom goes, you certainly have a right to believe that certain health care is immoral but you don’t have a right to insist that your employees’ health practices and benefits conform to your faith.”

For insurance companies, this is particularly true. According to Franita Tolson, assistant professor at Florida State University’s College of Law, since the accommodation “applies to everyone equally” (otherwise known as a “neutral law of general applicability”), insurance companies would be hard pressed to make a valid claim of unconstitutionality.  However, she warns, insurers may have cause under the Religious Freedom Restoration Act of 1993, which prohibits the federal government from infringing on one’s religious freedom, even if the infringement is a result of a general applicable rule, if they can successfully prove “a substantial burden on the exercise of their religion.”   “[Since] contraception as a sin is central to Catholic doctrine, [insurers] may be able to make this showing,” Tolson says. 

Lipton-Lubet takes a different stance. “It’s certainly not an infringement on religious liberty to ensure that women have access to health care that they need,” she says.

But this is something Tolson, who teaches constitutional law and election law at Florida State University, would disagree with—somewhat.

“It could be a potential infringement. If religious-affiliated insurers are forced to cover contraceptives, then they have a cognizable claim that their religious liberty is being burdened. Whether or not you think the claim will be successful is a different question,” she says. “It seems like [Lipton-Lubet] is saying that [s]he doesn’t think that such a claim will be successful and I am inclined to agree, but I still think there is a potential claim.”

Still, says Tolson, the modification is “consistent with Congress’ authority to regulate interstate commerce.” Insurers can challenge that Congress has exceeded its authority but “given the scope of this authority, however, it is unlikely that such a challenge will succeed.” “This may change, of course, if the Supreme Court invalidates portions of the health care bill this year,” she says.

While Tolson notes it is “conceivable” to make “the slippery slope argument”—that passing the amendment would open a legal door for any employer to eliminate vital health care coverage—there’s one thing to remember: “It is still a business. Once insurance companies start arbitrarily denying coverage, then they will lose business.” (Tolson does not believe the Blunt Amendment would pass in its current form).

But What About Contraception?

As for contraception itself—the central part of the controversy and the target of the Blunt amendment and USCCB’s wrath—scholars point out that it’s not a cut-and-dry case, constitutionally speaking.  Tolson thinks that the Blunt Amendment, as well as the Rubio bill, “certainly raise issues under the Equal Protection Clause.” But, she maintains, such a challenge would fail, primarily because there isn’t an actual constitutional privilege to contraceptive coverage.

“One of the reasons that the Supreme Court has not overturned Roe v. Wade is because they believed people have started to rely on their constitutional right to obtain an abortion, if needed. Overturning it would therefore be too disruptive,” says Tolson. But because the contraceptive mandate “hasn’t [yet gone] into effect, it [also] has not [yet] engendered the type of reliance that could potentially raise constitutional concerns.”

“If this provision [were in] effect and millions of women relied on their insurance to cover contraception, one could conceivably make the argument that taking it away violates the Constitution under a substantive due process theory.”

In fact, Tolson turns to the 1974 case, Geduldig v. Aiello, in which the Court found that California’s Disability Fund did not violate the Constitution under the Equal Protection Clause by denying insurance benefits to women who experienced disability during pregnancy.

In its decision, the Court found that California could “choose which disabilities to insure…in order to maintain the solvency and contribution level of the program.”Although only women can get pregnant, pregnancy was not treated as a sex-based classification.  I suspect that you will have a similar problem in this context,” she says.

Once more, advises Tolson, there’s a chance the Supreme Court, if it gets to that, could extend the reasoning behind the Hyde Amendment to contraceptives in terms of men having access to some preventive care versus women. The Hyde Amendment provides federal funding for childbirth but not abortions. But in the in the 1980 case, Harris v McRae, the Court found it did not violate the Constitution “even though it treats these two things differently.”

“Like the Hyde Amendment, the issue is who will pay. It is not as if this is an outright prohibition of contraceptives, which would be a different case,” Tolson says.

However, while there isn’t a strong Equal Protection or gender discrimination claim based on the Constitution, Tolson does offer that there is “definitely a viable Title VII [of the 1964 Civil Rights Act] action here.” As reported previously for Rewire, the Equal Employment Opportunity Commission (EEOC) ruled in 2000 that employer-provided insurance plans that refused contraceptive coverage but provided coverage for impotency and blood-pressure treatment were in violation of Title VII, which prohibits discrimination on the basis of sex, race, color, religion and national origin. And, as reported by Mother Jones, the EEOC opinion, sans a Supreme Court decision, was approved with no alteration or withdrawal from the George W. Bush administration. Thus, for the last 12 years, most proprietors with 15-plus employees have been required to offer contraceptive coverage if they offer preventive care for men and women.

Which brings us back to the USCCB and other anti-choice activists. While their intentions to overturn the birth control mandate in its entirety have been stated, there has to be something else to this debate, right?

“It’s incredibly misleading that the cause of religious liberty is being used essentially a Trojan horse to dismantle all of the Affordable Care Act,” says Laura MacCleery, CRR’s government relations director. “That’s really the goal and that has been the stated goal of many members of the House of Representatives, to take apart this new health care reform law. This is just another attempt at dismantling the basic protections that have been put into law and are still being put into implementation.”

“Certainly women’s health is being used quite cynically to try to incite conservative voters and to make this into a wedge issue that drives voters to the polls.”