Editor's note: This is the second "check" this week examining constitutional issues surrounding a government mandate that birth control services be covered by health insurance under the new federal Affordable Care Act. The prior article discussed constitutional questions about religious beliefs that oppose contraception.
This is another in a continuing series of posts in which Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution and what duties it imposes or rights it protects. Today’s topic: birth control and moral convictions.
The statement at issue:
"Nothing in this title (or any amendment made to this title) shall be construed to require an individual or institutional health care provider, or authorize a health plan to require a provider, to provide, participate in, or refer for a specific item or service contrary to the provider's religious beliefs and moral convictions."
-Language proposed by Sen. Roy Blunt, Missouri Republican, in the U.S. Senate on February 9, to amend the Affordable Care Act not only to protect religious institutions whose beliefs are opposed to birth control methods, but also to protect any entity providing health insurance if it is opposed to contraception or any other medical service on personal moral grounds.
We checked the Constitution, and...
From the very founding of the Nation, the Constitution has been understood to protect private religious beliefs from government intrusion. The same is not true for private moral values or convictions. Senator Blunt's Amendment, which also has some Democratic support, would appear to insulate a wide range of private moral choices about public policy–at least on health care–from government regulation. It thus may be changing the terms of constitutional debate over the government's powers under the new Affordable Care Act.
Until very recently, that constitutional debate has focused upon the new law's birth control insurance mandate as it applies to hospitals, colleges and other institutions operated by religious organizations that oppose contraception as a matter of their faith. As Congress moved into the debate more energetically this month, the initial focus was on proposed legislation that would create a broader exemption for those institutions, with the aim of protecting their religious freedom.
Along the way, however, some of the debate was turning to the question of repealing the mandate altogether, or, if that was not legislatively possible, to create a significantly broader exemption. Senator Blunt's proposal quickly moved to the forefront in this effort.
Throughout his proposed amendment to the health care law, the Blunt measure repeatedly calls for protection–in a single, repeated phrase–for "religious beliefs and moral convictions." It specifically treats those as embraced within "the rights of conscience."
It may well be that, for many people, the values that they hold as a matter of "conscience," and that they expect their Constitution to protect, are not really divided up clearly between religion and morality, or religion and ethics. In their minds, the source of their values may be very mixed between religion and some other social perspective.
But, as a matter of constitutional law, there is a difference, and the Supreme Court has relied upon it repeatedly in judging whether to uphold laws that reflect a particular notion of morality, or immorality. Much of the time, of course, the Court will allow a government at federal, state or local level to enact laws or adopt regulations that seek to promote a particular moral value.
Many criminal laws seek to do so, as do other forms of government regulation–such as laws against teenage drinking or against child marriages–that seek to promote "public health, safety and morals," in a phrase well known to lawyers and judges as they ponder what government may do in the exercise of its "police powers."
("Police," in this sense, has a much broader meaning than the authority of the local police department or the FBI. It refers to the power of government to keep order in civil society.)
It is not at all unusual for the Supreme Court to declare that moral preferences, based upon private ethical values but not religious belief, cannot be the basis of government policy if the effect or the intent is to seek to impose those preferences upon other parts of society that do not share them.
When the Court outlawed state laws that barred people of different races from marrying, or when it struck down laws that barred unmarried couples from access to birth control methods or devices, it rejected the claims that such laws were justified by perceptions that such marriages or that premarital sex were immoral.
Perhaps the most vivid expression of this constitutional approach–because the decision was and is so controversial in a society still deeply conflicted over homosexuality–was the Court's 2003 decision in Lawrence v. Texas. That is the ruling that struck down state laws making it a crime for homosexuals to engage privately and by mutual consent in sexual acts.
In a separate opinion that broadly discussed the moral arguments made for such laws, then-Justice Sandra Day O'Connor said that "moral disapproval" of homosexuality "is insufficient to satisfy" even the lowest level of constitutional scrutiny. She added: "We have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons."
It is already clear that women's rights groups, in particular, are advancing that same argument in response to Senator Blunt's proposal, on the theory that an employer providing health insurance could refuse to provide this or other forms of health care for women out of the entity's "moral convictions."
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.