Before a woman has an abortion, it is not considered and “undue burden” for her to endure a 72 hour waiting period (not including weekends), submit to (and pay for) a medically unnecessary ultrasound, or undergo a more dangerous abortion procedure when legislators find the safer procedure too gory.
On the other hand, for religious institutions that wish to be excluded from the ACA’s contraceptive mandate, filling out and sending a short form is too much to ask.
The New York Times ran an editorial, “Mistaken Ruling on Contraception” on 12/26/13 in which they describe the ruling of Federal District Court Judge Brian Cogan (a G.W. Bush appointee). Cogan ruled in favor of two high schools and two health care systems that “requiring religious-affiliated entities to inform insurance administrators that they wish to exclude contraceptive coverage — which some already do” is “a ‘substantial burden.’” The editorial further points out,
This case is among dozens challenging the birth control mandate. The Supreme Court agreed to hear two cases involving secular for-profit companies. What Judge Cogan missed, and the justices need to recognize, is the threat to religious liberty comes from employers trying to impose their religious views on workers.
I have discussed the imposition of religious beliefs on others in Catholic hospitals, where health care workers are not only prohibited from performing certain procedures, such as abortion, but are prohibited from telling patients that such procedures are an option, even when withholding such information is life-threatening to the patient (see full post here).
It seems religious beliefs are accommodated when they suit a lawmaker’s personal world view. If we think about it, what would happen if all religions were accommodated on the same terms? People have already raised the issue that Jehovah’s Witnesses do not believe in using blood transfusions and that Christian scientists do not believe in using allopathic health care. Yet the government has, on occasion, stepped in and forced people with such religious beliefs to accept allopathic health practices, and practices supported by Christian Scientists are not automatically covered by insurance.
When we begin accommodating or persecuting those of specific religions, exempting them from law or forcing them to abide by it, how are those decisions made? If I form (as a constitutional law professor once suggested to me) the Church of the Holy Cinderblock, am I allowed to demand that I can take my cinderblock to the doctor? What if my church mandates abortion for everyone who already has two children–can I impose that on others? What if my religion mandates that my life and health take precedence over those of a fetus–am I exempt from abortion restrictions in the law so that I may follow my religious practices? What if my religion supports male circumcision? Female genital cutting? Should I be able to mandate not only that I can keep these practices, but that insurance must pay for them?
What if the Church of the Holy Cinderblock develops a wealthy following that allows it to buy comprehensive health care systems, some of which are the only health care available in a certain region. Would it be acceptable that people who do not bring a cinderblock with them will not be treated? Would it be acceptable for my church to tell doctors that we do not believe in antibiotics, so they may not prescribe them, nor may they tell patients where to get them, nor may they tell patients that in their medical opinion, antibiotics are a life-saving treatment?
What if the Church of the Holy Cinderblock wanted to implement all of these policies, and all the health system had to do was have someone fill out a short form and send it to the insurance administrators? Could my church legitimately argue that filling out a form was unduly burdensome?
Or would the legitimate argument be that not offering standard heath care options at a healthcare institution is burdensome for patients? That there is a burden in not knowing that a health care institution is more interested in imposing its values on patients than allowing them to make informed decisions about their health?
Does Brian Cogan see a moral quandary in allowing women to die in the name of religion–even if you fill out a form first?
Or perhaps covering health care practices such as contraception are seen as unduly burdensome on a society that prefers not to regard women as full human beings.