By / Jun 20

On April 17, the Department of Health and Human Services (HHS) released a proposed rule under HIPAA privacy laws to limit sharing of personal reproductive health information. This new rule establishes that healthcare providers and other related entities may violate HIPAA if they comply with investigations into illegal abortion and gender transition procedures.

On June 16, the ERLC filed public comments in opposition to the change. HHS is obligated to respond to each comment before finalizing the rule.

 What is HIPAA?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was passed to protect sensitive health information from disclosure without the patient’s consent. Covered entities, which includes most healthcare providers and insurance plans, are required to obey HIPAA privacy regulations or face heavy fines.

HIPAA generally limits use and disclosure of protected health information (PHI) unless the individual grants permission for their information to be communicated. Exceptions to these protections include court orders and imminent threats to personal health and safety.

How would this proposed rule change HIPAA regulations?

The proposed changes would enact further HIPAA restrictions that limit the disclosure of PHI related to reproductive healthcare. HHS’ rule would prohibit healthcare providers from giving investigators access to abortion-related information, as well as information regarding other reproductive issues.

The stated intention of this proposed rule is to counteract “criminal, civil, or administrative investigations or proceedings that chill access to lawful health care and full communication between individuals and health care providers.” By redefining the nature and scope of healthcare privacy protections, HHS is seeking to halt future investigations into illegal abortions, gender transition surgeries, and other dangerous procedures.

HHS also proposes several definitional changes to key HIPAA provisions that would transform the meaning and application of the law. Under the proposed reinterpretation of HIPAA,

  • Unborn children are explicitly excluded from HIPAA protections, as the rule redefines “person” to mean “a human being who is born alive.”
  • HIPAA governance over normal “public health activities” is moved to a category separate from “reproductive healthcare,” which includes abortion, contraception, fertility treatments, and gender transition procedures. This arbitrary distinction prohibits government investigations of illegal healthcare practices from gathering any information broadly related to reproductive health.
  • Abortion cannot be a basis for considering an individual to be abused, neglected, or endangered. Under this provision, domestic abusers could more easily access the health records of those they are abusing or even force a minor in their care to get an abortion, all without fear of legal reprisal.

Contrary to HHS’ statement, this rule fails to protect vulnerable women and children and punishes healthcare providers for complying with investigations into illegal abortions and related procedures. By limiting investigators’ access to reproductive health information, the rule overrides state abortion laws and protects those who commit criminal healthcare activities as well as abusers.

Why is this problematic?

HHS’ proposed change would significantly expand HIPAA protections to further restrict necessary access to reproductive health information. Under this rule, healthcare providers possessing PHI related or connected to reproductive healthcare cannot disclose prudent information to the entity seeking it. As the rule grants special legal protection to abortion-related information, thereby limiting investigator access, investigative bodies and even patients themselves will face difficult hurdles to obtain permission to share health data.

By restricting investigative access to relevant PHI, this regulation advances individual privacy at the high cost of overriding all health, safety, and criminal interests of the state.

For example, under the proposed rule, a medical provider in California could not cooperate with an investigation in Texas, where abortion is in violation of state law. Medical licensing boards would similarly be barred from investigating doctors in abortion legal states even if they have an administrative subpoena.

States with some abortion restrictions would likely bear the regulation’s greatest burdens. If a government entity or medical licensing body attempts to investigate an abortion clinic for violating state law, perhaps for performing late-term abortions deemed illegal in that state, the investigatory entity would be barred from accessing health information necessary to ensure patient safety and prosecute criminal abortion providers.

By elevating a right to privacy in the area of reproductive health, HHS is also creating a safe harbor for criminals and abusers.

If a medical provider or doctor assists with an abortion or gender transition surgery illegal under state law, they will be protected from criminal and civil investigations. Even domestic abusers would benefit from the regulation’s newfound protections, as healthcare providers could not report suspected child abusers or limit their access to their dependent’s sensitive health records if the finding of abuse is primarily evidenced by reproductive health information, directly conflicting with Congress’ intent in HIPPA.

As our comments stated, “The lives and well-being of vulnerable women and children are not expendable for the sake of the Department’s political agenda surrounding abortion. These survivors of abuse deserve full protection of the law and every possible measure must be allowed to ensure their safety.” 

HHS is also leveraging this regulation to improperly assert federal jurisdiction over abortion regulation. The Supreme Court ruled in Dobbs v. Jackson that the Constitution grants no federal right to abortion, instead leaving regulation to Congress and the states. But under this proposed regulation, the federal government overrides state-level restrictions to elevate abortion to a special, protected status. There is no rational basis to overrule state law when there is no federal right to abortion.

As we argued in our comments:

“By allowing federal employees to interpret state laws and give the presumption of invalidity of entire categories of state laws, the NPRM is in direct conflict with (the Supreme Court’s) ruling.  The Department’s directive allows federal bureaucrats to be both the judge and jury for how to interpret state law and to make decisions on when such laws should be followed or not.”

How has the ERLC responded?

The ERLC has submitted public comments expressing these concerns about the proposed rule and urging HHS to retract its changes to HIPAA privacy regulations. The ERLC will continue to monitor these changes and advocate for the protection of life and human dignity at all stages.

By / Dec 27
By / Dec 27

Progressives and proponents of Roe v. Wade have done a lot of handwringing and social media-posting in the aftermath of the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization. Citizens of a democracy like ours will understand that these court decisions have both a legal and an educational role. 

Roe and Doe v. Bolton, for instance, not only legalized promiscuous abortion, they also falsely taught generations of Americans that preborn human beings were merely “clumps of tissue.” Since then, education about what is going on in the womb has been crucial to the pro-life cause. The Dobbs decision provides additional opportunities for education on the profound truth that preborn human beings deserve the protection of the law. But the implications of this reality are far-reaching, providing impetus for reflecting on other, related issues.

Considering early views of contraception

Take the issue of contraception, for instance. From the beginning, and throughout its pages, Holy Scripture advances a presumption in favor of procreation. From the Creation mandate to “Be fruitful and multiply and fill the earth” (Gen. 1:28), to the celebration of the psalmist that “children are a heritage from the LORD, the fruit of the womb a reward. Like arrows in the hand of a warrior are the children of one’s youth. Blessed is the man who fills his quiver with them!” (Ps. 127:3-5), to Paul’s indication that an example of a widow’s good deeds is “bringing up children” (1 Tim. 5:10), the Bible is decidedly pro-natal (for procreation). Children are to be welcomed, not refused. 

Scripture’s presumption in favor of procreation was not because contraception was unknown in the ancient world. Aristotle (384-322 B.C.) proposed using various natural oils as spermicides. Pliny (23-79 A.D.) encouraged sexual abstinence to avoid pregnancy. Barrier methods, including condoms made of natural materials, date back roughly to 1000 B.C. Despite those methods, Christians mostly avoided contraception until recently, welcoming children as a gift from the Lord and realizing that widespread use of contraceptives would inevitably lead to promiscuity.

Allan Carlson, president emeritus of the Howard Center for Family, Religion, and Society, corrects our collective memory loss about the role of American evangelicals in opposing birth control. He reminds us that American Evangelical Protestants were vocal in their opposition to birth control as recently as 100 years ago, passing laws and strong restrictions on the practice. 

All the same, by 1973—the year the U.S. Supreme Court overturned the abortion laws of all 50 states—American Evangelical leaders had not only given a blessing to birth control; many would come to welcome the Court’s decision in Roe v. Wade as a blow for religious liberty.1Godly Seed: American Evangelicals Confront Birth Control, 1873-1973 (Routledge, 2011), pp. 1-2.

In the early 20th century, at the 1934 annual meeting of the Southern Baptist Convention, messengers passed the following resolution:

The Southern Baptist Convention hereby expresses its disapproval of the Hastings Bill, now pending in the Congress of the United States, the purpose of which is to make possible and provide for the dissemination of information concerning contraceptives and birth control; whatever the intent and motive of such proposal we cannot but believe that such legislation would be vicious in character and would prove seriously detrimental to the morals of our nation. (Resolution on Birth Control, May 1, 1934, Fort Worth, TX).

Current considerations of contraception

Today, however, even pro-life Christians generally favor certain forms of contraception. Natural family planning (NFP) and barrier methods (condoms and cervical caps) are largely uncontroversial among most evangelical Christians. This seems to be the case because our understanding of the relationship between married sexual intimacy and procreation has been severed and family planning has been routinely embraced.2Blackburn, W. Ross. “Sex and Fullness: A Rejoinder to Dennis Hollinger on Contraception.” Journal of Evangelical Theological Society 58, no. 1 (March 2015): 117-130. Postponing children—whether for finances, finishing school, or after a career is settled—is more the norm than the exception, even among Christians.

The use of non-abortifacient means of contraception is also less controversial because they prevent pregnancy by preventing fertilization. The reasoning is that as long as embryos are not harmed, there is no harm in these forms of contraception. Abortifacient means of contraception (some forms of the contraceptive pill, the IUD, and elective abortion) are increasingly rejected by Christians, and for good reason, namely that they allow fertilization to take place, but force a woman’s body to reject the preborn human embryo or violently remove him or her.

Although it’s right and good to focus on the harm to the preborn, there may be other harms of birth control worth consideration, including the cultivation of a widespread culture of contraception such as the one we currently inhabit. There are good reasons God made our bodies ready to parent earlier rather than later in life. Postponing procreation increases the likelihood of infertility and complications during pregnancy.3L. Schmidt, T. Sobotka, J.G. Bentzen, A. Nyboe Andersen, on behalf of the ESHRE Reproduction and Society Task Force, Demographic and medical consequences of the postponement of parenthood, Human Reproduction Update, Volume 18, Issue 1, January/February 2012, Pages 29–43, https://doi.org/10.1093/humupd/dmr040 Additionally, Mary Eberstadt’s volume, Adam and Eve After the Pill: Paradoxes of the Sexual Revolution, makes a convincing argument that widespread availability of contraception fueled the sexual revolution and its toxic aftermath of social pathologies such as abortion, divorce, cohabitation, and pornography.

Interestingly, a search of the annual resolutions of the Southern Baptist Convention does not find any resolutions on the ethics of birth control per se. Abortifacient methods of contraception and the distribution of contraceptives without parental consent are rightly decried, but whether or not married couples should use contraception is not mentioned at all, presumably because Southern Baptist have left that matter to Christian conscience. 

Important questions to consider 

Perhaps while we are working out the moral and legal implications of Dobbs for abortifacient contraceptives, it’s time for evangelicals and other Christians to rethink their understanding of the relationship of marriage and procreation and what that means for being complicit in an anti-natal (against procreation) culture of contraception. 

In a benchmark essay published in the Journal of the Evangelical Theological Society, Christian ethicist Dennis P. Hollinger offers a helpful set of arguments both against and for contraception.4https://www.etsjets.org/files/JETS-PDFs/56/56-4/JETS_56-4_683-96_Hollinger.pdf Several important questions to consider emerge from the discussion:

  1. Does the “procreation mandate” (Gen. 1:28) prohibit all forms of contraception?
  2. Does Scripture require that every act of sexual intimacy be open to procreation, or may married couples enjoy other goods of sexual intimacy (e.g., pleasure, union) while using non-abortifacient means of contraception?
  3. Can Christians be welcoming toward children and childbearing and at the same time practice birth control?
  4. The creation mandate to have dominion includes the command to intervene in the world and steward its resources. Are non-abortifacient methods of birth control examples of appropriate stewardship, allowing married couples to determine the number of children they should have based on the providence of God, their stage of life, and the financial and other resources they have?
  5. Might there be special circumstances in God’s providence where it may be dangerous to children who are born in that context (e.g., in a culture hostile to Christianity or where there is not adequate food and water)?

Praying through and answering these kinds of questions will help faithful Christians resist the pressures of the contraceptive culture while following the leadership of the Lord in their own families. As we celebrate, embrace, and care for children, may the Lord use us to contribute to a culture of life in our churches, communities, and throughout the country.

  • 1
    Godly Seed: American Evangelicals Confront Birth Control, 1873-1973 (Routledge, 2011), pp. 1-2.
  • 2
    Blackburn, W. Ross. “Sex and Fullness: A Rejoinder to Dennis Hollinger on Contraception.” Journal of Evangelical Theological Society 58, no. 1 (March 2015): 117-130.
  • 3
    L. Schmidt, T. Sobotka, J.G. Bentzen, A. Nyboe Andersen, on behalf of the ESHRE Reproduction and Society Task Force, Demographic and medical consequences of the postponement of parenthood, Human Reproduction Update, Volume 18, Issue 1, January/February 2012, Pages 29–43, https://doi.org/10.1093/humupd/dmr040
  • 4
    https://www.etsjets.org/files/JETS-PDFs/56/56-4/JETS_56-4_683-96_Hollinger.pdf
By / Jul 22

The House on Thursday passed the Right to Contraception Act by a final vote of 228-195. The vote was split mostly on party lines, with 220 Democrats and only eight Republicans voting in favor of the bill. It’s still unclear if the Senate will bring the bill forward for a vote. 

The legislation was rushed through because of a comment made by Justice Clarence Thomas in his concurring opinion in Dobbs v. Jackson. Despite the majority opinion insisting that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Justice Thomas wrote that the Supreme Court should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence and Obergefell.” 

In the case of Griswold v. Connecticut (1965), the court ruled that “right to privacy” can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. Justice Thomas’ point is that the constitution does not include such a “right to privacy” ​​and that the issue should be resolved by the legislature. 

The stated purpose of the bill is, “To protect a person’s ability to access contraceptives and to engage in contraception, and to protect a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.” If this was the actual effect of the ​​bill, it would not be controversial for most Americans—including Protestant Christians, who believe that contraception is a matter of conscience and hold diverse views on the subject. 

However, there are two primary concerns with this legislation. ​The first is that the bill’s definition of “contraception” is so broad it could be used to include potential abortifacients. The second is that it imposes a substantial threat to religious liberty. 

Potential mislabeling of contraceptives 

The purpose of contraceptives is to prevent conception (hence the term “contra”— against conception). The scientific understanding of conception is that it occurs at fertilization. Therefore, the historical meaning of contraceptive—and the one still used by pro-lifers—is any method that prevents fertilization.

However, in 1972 the American College of Obstetricians and Gynecologists changed the definition of conception to mean implantation of the embryo into the wall of the mother’s uterus. As physician Megan Best has explained, under the new definition, any device that prevented the embryo from implanting in the uterus could be marketed as a contraceptive.

“This change of definition means there are two classes of contraceptives,” says Dr. Best, “those that work before fertilization, the classic definition, and prevent the sperm from joining with the egg; and those that cause an early abortion by acting after fertilization.”

The Right to Contraception Act directly states that for the purposes of the law ‘‘’contraceptive’’’ means any device or medication used to prevent pregnancy” and includes any contraceptive devices approved by the U.S. Food and Drug Administration (FDA). The law would not allow states to determine that, to protect the consciences of its citizens, they will err on the side of caution and disallow any contraceptives that might have an abortifacient effect. Instead, the bill, as written, not only allows the FDA sole authority to make such a determination, but also makes it possible for any abortifacient to be automatically protected if the regulatory agency classified it as a “contraceptive.”

The threat to religious liberty

The law also is a threat to religious freedom in general, and the Religious Freedom Restoration Act (RFRA) in particular. 

The RFRA is a federal law passed in 1993 that is intended to prevent other federal laws from substantially burdening a person’s free exercise of religion. The RFRA states that the government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. A person whose religious exercise has been burdened in violation of this law may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. 

The most high-profile federal case that relied on RFRA was the 2014 case Burwell v. Hobby Lobby Stores, a challenge to the Affordable Care Act’s Health and Human Services (HHS) contraceptive mandate that required all for-profit companies to cover abortion-inducing drugs—even against the religious objections of these businesses’ owners.

​The Right to Contraception Act would bring back issues that were resolved in ​the Hobby Lobby case. The act would not only supersede any state laws, but would take precedence over any “other provision of Federal law, including the Religious Freedom Restoration Act of 1993.” 

Many politicians and citizens—including pro-lifers and religious liberty advocates—will likely support the legislation because of the mistaken impression it merely protects the use of contraceptives. But the bill needs substantial revision before it should be allowed to pass the Senate. As we enter the new phase of in the post-Dobbs era, Christians need to extra vigilant as abortion supporters will attempt to pass harmful legislation, such as this, under the guise of it being a noncontroversial measure. The ERLC is opposed to this bill, and all legislation that does not protect life and religious liberty, and is committed to advocating against its passage in the Senate. 

Brent Leatherwood, the ERLC’s acting president, said this about the bill,

“While from a distance this legislation may seem innocuous, a review of the details reveals It to be nothing less than an affront to religious liberty. I realize some congressional leaders are lashing out in any number of ways following the Dobbs decision, but to create a carve out of RFRA protections and a pathway for paving over consciences that have sincere religious objections is simply extreme. I would once again implore our policymakers to focus on ways to develop a culture of life where lives are saved, mothers are served, and families are supported.”

By / Mar 1

This week, the U.S. Senate Committees on Health, Education, Labor & Pensions (HELP) and Finance held hearings on the nomination of Xavier Becerra for Secretary of the Department of Health and Human Services (HHS). Becerra is among President Joe Biden’s most controversial cabinet nominees, drawing significant opposition from pro-life Americans and religious liberty advocates.

Who is Xavier Becerra?

Currently, he serves as the attorney general of California, succeeding Kamala Harris after she was elected to the United States Senate in 2016. Prior to his appointment as attorney general, he served 12 terms in Congress as a member of the U.S. House of Representatives.

What is Becerra’s history regarding life and religious liberty issues?

As attorney general, Becerra targeted pregnancy resource centers, pro-life policies, and Catholic charities with a range of lawsuits challenging their religious liberty and conscience rights.

In a 2018 Supreme Court case titled National Institute of Family and Life Advocates (NIFLA) v. Xavier Becerra, Attorney General of California, Becerra threatened to shut down pregnancy resource centers serving women and children in crisis. The conflict arose after California passed a law requiring pro-life centers to publicize abortion services provided by the state or face exorbitant fines that would likely run them out of business. Forcing pro-life pregnancy resource centers to advertise for abortions is antithetical to their mission. Thankfully, NIFLA won in a 5-4 decision by the Supreme Court.

In possibly his most infamous pursuit, Becerra filed suit to strip conscience protections for religious organizations, such as the Catholic charity, Little Sisters of the Poor. The suit was an attempt to force them to violate their consciences by providing coverage of contraception and abortifacients to employees. The Little Sisters of the Poor have appeared before the Supreme Court multiple times, repeatedly asking for, and consistently winning, a religious exemption to the contraceptive mandate from the Affordable Care Act and resulting HHS regulations.

As a member of the House of Representatives, Becerra voted regularly against life-protecting and life-saving bills, including voting against the Partial-Birth Abortion Ban Act, the Born-Alive Abortion Survivors Protection Act and the Pain-Capable Unborn Child Protection Act. He also voted against the Conscience Protection Act of 2016, which would have prevented the federal government from denying federal funds to Catholic hospitals and other facilities that refuse to perform abortions. Additionally, he opposed investigating Planned Parenthood’s sale of “fetal tissue” leftover from abortion procedures. 

In December 2020, when then President-elect Biden announced Becerra’s nomination for HHS, ERLC president Russell Moore said

“I expect that, as he undergoes the process of the Senate’s constitutional duty to advise and consent, senators will ask Xavier Becerra about his troubling hostility to pregnancy resource centers and other faith-based institutions during his tenure as California attorney general, and whether such actions would characterize his potential leadership at HHS. The country desperately needs an HHS Department that can help unify and mobilize, not one that will further divide us. The new HHS secretary, a position that is crucially important but never more so than during a global pandemic, should have the coronavirus as enemy number one, not Americans with differing religious convictions.”

What happened at the Senate hearings this week?

Sen. Patty Murray (D-Wash.) opened the hearing before the Senate Committee on Health, Education, Labor & Pensions by highlighting Becarra’s experience as a congressman and as California’s attorney general. Democratic Senators tended to ask questions regarding Becerra’s commitment to healthcare access, high drug prices, and the vaccine rollout. On the other side of the aisle, Republicans raised concerns over rural healthcare funding, excessive government regulations, and abortion. 

Abortion was first brought up in Sen. Mike Braun’s (R-Ind.) opening question. Noting Becerra’s liberal history on the subject, Braun asked if he would commit to “not using taxpayer money to fund abortions and abortion providers.” Becerra largely dodged the question and said that he is “committed to following the law regarding federal resources,” which leaves the door open for taxpayer funded abortions should the Hyde Amendment be repealed — as congressional Democrats have signaled they will try to do this year. The Indiana Senator also mentioned Becerra’s antipathy toward religious liberty, specifically his actions against the Little Sisters of the Poor.

Sen. Romney (R-Utah) also addressed abortion by pressing Becerra to explain his vote against the Partial-Birth Abortion Ban Act. Becerra responded that he understands that people have deeply held beliefs and that he was sure they could find some “common ground.” However, Romney made it clear that while common ground is possible on many issues, it isn’t on partial-birth abortion. 

In the Senate Finance Committee hearing the next day, Becerra’s stances on abortion and religious liberty were questioned again by Republican lawmakers. Sen. James Lankford (R-Okla.) began by stating that Becerra sued the federal government over 100 times as California’s attorney general — including multiple instances regarding conscience protections. In light of these lawsuits, Lankford asked if Becerra would “continue to enforce existing federal law on conscience issues” that he had argued against all the way to the Supreme Court. Lankford further pressed Becerra, asking whether or not faith-based entities would receive grants or aid “at the same level as non-faith based entities.” Becerra struggled to respond and pivoted towards a general response that he would uphold the laws as written. 

Sen. Steve Daines (R-Mont.) said that he has serious concerns regarding Becerra’s “extreme” stance on both abortion and religious liberty. He asked Becerra if he could name “one abortion restriction he might support.” Once again, he responded with his increasingly common refrain that he would simply “follow the law.” 

After a brief recess, Becerra failed to answer any more substantively when Sen. Ben Sasse (R-Neb.) pressed him on enforcing Obamacare’s contraception mandate and accused him of “bullying” the Little Sisters of the Poor. 

How has the ERLC been involved?

The ERLC joined more than 60 pro-life organizations to send a Congressional letter highlighting concerns with Becerra’s nomination. Additionally, the ERLC submitted amicus briefs to the Supreme Court on the cases which Becerra antagonized the Little Sisters of the Poor and NIFLA.

What’s next?

If he passes both committee votes, Becerra will receive a floor vote and would need 50 votes to be confirmed. Sen. Joe Manchin (D-W.Va.) identifies as pro-life and has previously voted in favor of pro-life pieces of legislation such as the Born-Alive bill and the Pain Capable bill. It’s unclear whether Manchin will raise concerns about Becerra’s troubling pro-abortion track record. The ERLC will continue to be a voice for the voiceless and defend the lives of the unborn and the vulnerable.

By / Jul 9

Today, the Supreme Court issued a 7-2 decision in Little Sisters of the Poor v. Pennsylvania.  In this case the Justices held that religious organizations could be exempt from a government mandate that they provide contraception coverage for their employees.

In 2010, Congress passed the Affordable Care Act which included a mandate for employers to provide contraception for their employees. Although churches were exempt from the mandate, religious employers and nonprofits were not. The Trump administration issued an exemption to this mandate for religious employers.  Pennsylvania and New Jersey sued, arguing that these rules should be struck down because they interfere with the government’s interest in providing access to contraception and alleging that the government violated the ACA and the Administrative Procedure Act when issuing the rules. The Little Sisters of the Poor asked the Court to uphold the exemption for religious organizations. 

The ERLC filed an amicus brief (a friend-of-the-court brief) with other religious organizations arguing that the contraceptive mandate does impose a substantial burden on religious organizations. Specifically, we argued that forcing Little Sisters to provide contraception would violate their sincerely held religious beliefs.  We also pointed out that if the exemption was not granted, the Little Sisters would be subject to over 2 million dollars in files for noncompliance. Both of these reasons prove the mandate imposed a substantial burden.

Justice Thomas wrote the majority opinion and was joined by Chief Justice Roberts, Justices Alito, Gorsuch, and Kavanaugh. Justice Alito wrote a conuccence joined by Justice Thomas. Justice Kagan wrote a concurrence and was joined by Justice Breyer, while Justice Ginsberg and Sotomayor dissented. 

Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.

For more information on this case and how it will further impact religious organizations, check out our explainer.

Majority Opinion: Justice Thomas joined by Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh

The Trump Administration can provide an exception to the mandate:

“We hold that the Departments had the authority to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections.” (2)

“By its terms, the ACA leaves the Guidelines’ content to the exclusive discretion of HRSA. Under a plain reading of the statute, then, we conclude that the ACA gives HRSA broad discretion to define preventive care and screenings and to create the religious and moral exemptions.” (16)

“The dissent resists this conclusion, asserting that the Departments’ interpretation thwarts Congress’ intent to provide contraceptive coverage to the women who are inter- ested in receiving such coverage.” (17)

“Contrary to the dissent’s protestations, it was Congress, not the Departments, that declined to expressly require contraceptive coverage in the ACA itself.” (18)

“The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly allows the Departments to create the preventive care standards as well as the religious and moral exemptions.” (18)

“We focus our inquiry on whether the Departments satisfied the APA’s objective criteria, just as we have in previous cases. We conclude that they did.” (25)

The Religious Freedom and Restoration Act was the appropriate basis for the HRSA exception:

“It is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA.” (20)

“If the Departments did not look to RFRA’s requirements or discuss RFRA at all when formulating their solution, they would certainly be susceptible to claims that the rules were arbitrary and capricious for failing to consider an important aspect of the problem.” (22)

Let the Little Sisters serve:

“For over 150 years, the Little Sisters have engaged in faithful service and sacrifice, motivated by a religious calling to surrender all for the sake of their brother…But for the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.” (26)

“After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.” (26)

Concurring Opinion: Justice Alito joined by Justice Gorsuch 

HRSA was right to provide a mandate on the basis of RFRA:

“Under our decision in Hobby Lobby, requiring the Little Sisters or any other employer with a similar religious objection to comply with the mandate would impose a substantial burden.” (6)

“The contraceptive mandate imposes a substantial burden on any employer who, like the Little Sisters, has a sincere religious objection to the use of a listed contraceptive and a sincere religious belief that compliance with the mandate…makes it complicit in the provision to the employer’s workers of a contraceptive to which the employer has a religious objection.” (10)

“I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption. . . . I would bring the Little Sisters’ legal odyssey to an end.” (19)

There is no compelling government interest to force nuns to provide contraception:

“In Hobby Lobby, the Government asserted…that [it] had a compelling interest in “ensuring that all women have access to all FDA-approved contraceptives without cost sharing.” Now, the Government concedes that it lacks a compelling interest in providing such access, and this time, the Government is correct.” (10)

“Thus, in order to establish that it has a ‘compelling interest’ in providing free contraceptives to all women, the Government would have to show that it would commit one of ‘the gravest abuses’ of its responsibilities if it did not furnish free contraceptives to all women. (10-11)

“The ACA—which fails to ensure that millions of women have access to free contraceptives—unmistakably shows that Congress, at least to date, has not regarded this interest as compelling.” (11)

“First, the ACA does not provide contraceptive coverage for women who do not work outside the home. If Congress thought that there was a compelling need to make free contraceptives available for all women, why did it make no provision for women who do not receive a paycheck?” (11)

“Second, if Congress thought that there was a compelling need to provide cost-free contraceptives for all working women, why didn’t Congress mandate that coverage in the ACA itself? Why did it leave it to HRSA to decide whether to require such coverage at all?” (11-12)

“Third, the ACA’s very incomplete coverage speaks volumes. The ACA “exempts a great many employers from most of its coverage requirements.” (12)

Warning for the future:

“We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the [Administrative Procedure Act].” (2)

Concurring Opinion: Justice Kagan, joined by Justice Breyer

Justices Kagan and Breyer agreed only with the judgment of the Court and not with the majority’s reasoning. They filed a separate opinion to articulate their reasoning for agreeing with the final outcome of upholding HHS’s rules.

HRSA has authority is issue exceptions:

“I would uphold HRSA’s statutory authority to exempt certain employers from the contraceptive-coverage mandate, but for different reasons than the Court gives.” (1)

“Over the course of two administrations, the Departments have shifted positions on many questions involving the Women’s Health Amendment and the ACA more broadly. But not on whether the Amendment gives HRSA the ability to create exemptions to the contraceptive-coverage mandate. . . While the exemption itself has expanded, the Departments’ reading of the statutory delegation—that the law gives HRSA discretion over the “who” question—has remained the same. I would defer to that longstanding and reasonable interpretation.” (3)

The lower courts should examine that process used in issuing the exemption:

“[T]hat does not mean the Departments should prevail when these cases return to the lower courts. The States challenged the exemptions not only as outside HRSA’s statutory authority, but also as ‘arbitrary [and] capricious.’”(3)

“An agency acting within its sphere of delegated authority can of course flunk the test of ‘reasoned decisionmaking.’  The agency does so when it has not given ‘a satisfactory explanation for its action’—when it has failed to draw a ‘rational connection’ between the problem it has identified and the solution it has chosen, or when its thought process reveals ‘a clear error of judgment.’” (4)

“As noted earlier, I would defer to the Departments’ view of the scope of Congress’s delegation. That means the Departments (assuming they act hand-in-hand with HRSA) have wide latitude over exemptions, so long as they satisfy the requirements of reasoned decisionmaking. But that ‘so long as’ is hardly nothing. Even in an area of broad statutory authority—maybe especially there—agencies must rationally account for their judgments.” (7)

Dissenting Opinion: Justice Ginsburg joined by Justice Sotomayor

Depriving women of contraception coverage:

“Destructive of the Women’s Health Amendment, this Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets.” (2)

“Effective contraception, it bears particular emphasis, ‘improves health outcomes for women and [their] children,’ as ‘women with unintended pregnancies are more likely to receive delayed or no prenatal care’ than women with planned pregnancies.” (5)

“Despite Congress’ endeavor, in the Women’s Health Amendment to the ACA, to redress discrimination against women in the provision of healthcare, the exemption the Court today approves would leave many employed women just where they were before insurance issuers were obliged to cover preventive services for them, cost free.” (8)

“In this light, the Court has repeatedly assumed that any religious accommodation to the contraceptive-coverage requirement would preserve women’s continued access to seamless, no-cost contraceptive coverage.” (14)

“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” (1)

Religious exemptions have been wrongfully extended to for-profit companies:

“For years, religious organizations have challenged the self-certification accommodation as insufficiently protective of their religious rights. While I do not doubt the sincerity of these organizations’ opposition to that accommodation, I agree with Pennsylvania and New Jersey that the accommodation does not substantially burden objectors’ religious exercise.” (18)

“Under new rules drafted not by HRSA, but by the IRS, EBSA, and CMS, any ‘non-governmental employer’—even a publicly traded for-profit company—can avail itself of the religious exemption previously reserved for houses of worship.” (7)

“The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.” (21)

ERLC interns Julia Stamper, Sloan Collier, Seth Billingsley, and Mary Beth Teague contributed to this article.

By / Jul 18

On this episode of Countermoves, Andrew Walker talks with ethicist Evan Lenow about the use of contraception and its implications for Christian ethics 50 years after Humanae Vitae.

Evan Lenow serves as Associate Professor of Ethics, Bobby L. and Janis Eklund Chair of Stewardship, Director of the Richard Land Center for Cultural Engagement, and Director of the Center for Biblical Stewardship at Southwestern Baptist Theological Seminary in Fort Worth, TX. He holds a Doctor of Philosophy in Christian ethics from Southeastern Baptist Theological Seminary in Wake Forest, NC. In addition, he also holds a Master of Divinity with Advanced Biblical Studies from Southeastern Seminary and a Bachelor of Arts in Communication from Mississippi College in Clinton, MS. He has also been appointed as a Research Fellow in Christian Ethics for the Ethics and Religious Liberty Commission of the Southern Baptist Convention.

His main areas of interest include ethics of marriage and family, sexual ethics, and the integration of theology and ethics.

You can follow him on twitter: @EvanLenow

By / Mar 8

Editor’s note: This is the tenth article in a monthly series on what Christians should know about bioethics.

What is an abortifacient?

An abortifacient is a chemical or drug that causes embryonic death by either killing the child directly or by preventing implantation in the uterine lining of the embryonic child. The term abortifacient means “that which will cause a miscarriage” (derived from the Latin abortus (miscarriage) and faciens (making).

How do abortifacients differ from contraceptives?

The purpose of contraceptives is to prevent conception (hence the term “contra”— against—conception). The scientific understanding of contraception is that it occurs at fertilization. The historical meaning of contraceptive—and the one still used by pro-lifers—is methods that prevent fertilization.

However, in 1972 the American College of Obstetricians and Gynecologists change the definition of conception to mean implantation of the embryo into the wall of the mother’s uterus. As physician Meghan Best explains, under the new definition, any device that prevented the embryo from implanting in the uterus could be marketed as a contraceptive.

“This change of definition means there are two classes of contraceptives,” says Dr. Best, “those that work before fertilization, the classic definition, and prevent the sperm from joining with the egg; and those that cause an early abortion by acting after fertilization.”

What this means is that some, but not all, contraceptives may have an abortifacient effect. Obviously, barrier contraceptives, such as condoms or diaphragms, which place a physical obstruction between the sperm and the egg are not abortifacients. Some devices considered contraceptives—such as the IUD or intrauterine device—are highly likely to be abortifacients because their primary function is to prevent implantation.

But there are some oral contraceptives—“the Pill”—that may or may not have an abortifacient effect. As Dr. Best explains:

There are three known actions by which the pill prevents pregnancy:

1.    The pill suppresses ovulation (egg production);

2.    The pill makes it difficult for the sperm to move through the cervix; and

3.    The pill makes the lining of the womb thinner and hostile to the embryo implanting.

The first two actions are not controversial, as they obviously just stop egg and sperm from getting together. They are acting before fertilization. The concern is the third effect. Some Christians have argued that if the first and second mechanisms fail, so that an egg is produced and sperm do get through the cervix, then an embryo could form. If this was the case and the womb was not prepared for the embryo to implant and develop, it would put the pill into the second contraceptive category of abortifacients.

However, I think there is better evidence that if the first and second mechanisms fail and an embryo is formed, then we would also expect the third mechanism to fail (as they come as a package—all or none) and you would not have an abortion, but an unplanned pregnancy. There are disagreements about the reliability of the evidence both sides claim to support their arguments. The definitive research needed to decide the issue once and for all has not, and probably will never be, done.

Are “emergency contraceptives” abortifacients?

Emergency contraception—sometimes also known as the “morning after pill”—is a method of contraception that is taken after sexual intercourse with the intention of preventing pregnancy.

There are three main types of emergency contraception approved for use in the United States. The first type uses Levonorgestrel (Plan B One-Step, Next Choice One Dose, After Pill, Take Action, and My Way). As with oral contraception, it is unclear whether this drug has an abortifacient effect.

The second type uses Ulipristal acetate (ella), which is suspected of having an abortifacient effect.

The third type is the copper T IUD, which is also suspected of having an abortifacient effect.

Are abortifacients used to induce abortions?

The two broad methods for legal abortions in the U.S. are medical and surgical. A medical abortion (sometimes referred to as a medication abortion, chemical abortion, or pharmaceutical abortion) is a method that uses an abortifacient to stimulate uterine contractions and end the pregnancy in a process similar to miscarriage.

The FDA approved method for chemical abortions is a two-step process involving the drugs mifepristone and misoprostol. Mifepristone (brand name Mifeprex) ends a pregnancy by blocking the hormone progesterone, which is needed to maintain a pregnancy. Because this hormone is blocked, the uterine lining begins to shed, removing the child (in the embryonic state) that was attached. The second step, which occurs 24 to 48 hours later, requires taking misoprostol which causes the woman to expel the child and the uterine lining in a matter similar to a miscarriage.

What is RU-486?

The most common drug used for medical abortion is Mifeprex, the brand name for mifepristone, a drug that was formerly known as RU-486. The drug was developed in France in the 1980s and banned by President George H.W. Bush Administration’s FDA in 1989. In 1993, President Bill Clinton asked the FDA to review the ban, which was lifted in 2000.

Currently, the drug is approved by the FDA provided it is “dispensed in certain healthcare settings, specifically, clinics, medical offices and hospitals, by or under the supervision of a certified prescriber.” In 2016, the FDA extended the time the abortion pill could be taken to 70 days into a pregnancy. (Despite how the name might sound—“Are you for 86?” (“86” being slang for ejecting something or someone—RU-486 was derived from the initials of the French pharmaceutical company that patented the drug (Roussel Uclaf) and the serial number (486).)

Are abortifacients dangerous to women?

As Americans United for Life notes, numerous, well-documented studies in peer-reviewed medical journals have demonstrated that chemical abortions pose significant medical risks for women. A review of nearly 7,000 abortions performed in Australia in 2009 and 2010 found that 3.3 percent of patients who used mifepristone in the first trimester required emergency hospital treatment, in contrast to 2.2 percent of patients who underwent surgical abortions.

Women receiving chemical abortions were also admitted to hospitals at a rate of 5.7 percent following the abortion, as compared with 0.4 percent for patients undergoing surgical abortion. Another study revealed that the overall incidence of immediate adverse events is fourfold higher for chemical abortions than for surgical abortions.

By / Jan 24

Southern Baptists believe all human beings are created in the image of God and must be treated accordingly, no matter the stage of life. The Southern Baptist Convention (SBC) in a 2015 resolution recognized that God is the author of life, “from the moment of conception until natural death.” In view of this, ERLC remains deeply concerned about the U.S. Department of Health and Human Services (HHS) preventive care mandate, whereby the government bullies people of deep convictions to violate their beliefs in order to achieve government policy.

The federal government is required by the U.S. Constitution to safeguard religious freedom for all. Trampling the consciences of people of faith—such as the Little Sisters of the Poor, who serve the most vulnerable with love and compassion—hurts society and violates fundamental American principles. The Constitution safeguards the consciences of the governed, and federal regulations should reflect this constraint on government.

ERLC supports exemptions for both religious and moral objectors from the HHS preventive care mandate. At the founding of our country, James Madison wrote, “Conscience is the most sacred of all property.” Regardless of the source of the conviction, whether religious or moral, the Constitution guarantees the protection of the conscience. Contraception will remain widely and readily available to those who seek it. Those employed by religious organizations and faith-based universities usually share the
organization's religious convictions. Those who disagree with their employer’s religious or moral sentiments still have access to federal, state, and local programs that provide free or subsidized contraception, or can purchase contraception from local drugstores at a minimal cost.

It is time for HHS to provide true religious and moral exemptions to the unconstitutional preventive care mandate. Three years have passed since the Supreme Court decided in Zubik v. Burwell that mandated coverage of certain preventive services under the Affordable Care Act was unconstitutional. In spite of this decision, HHS did not provide a legitimate accommodation for people of faith. Now is the time for HHS to end the unconstitutional mandate and make an exemption covering those with religious and moral objections.

By / Oct 6

It has been a great week for religious freedom – the protection for the conscience rights of every American of every faith and the free exercise thereof. Earlier this week, the Senate Foreign Relations committee held its hearing for Gov. Sam Brownback to become the next Ambassador-at-Large for International Religious Freedom. And today, the Department of Health and Human Services finally provided new rules that exempt the Little Sisters of the Poor, our fellow Baptist universities and organizations, and many other entities of many faiths who objected to the Obama era regulations forcing them to participate in health insurance policies that provide abortion-causing drugs.

Also today, the Department of Justice issued wide-ranging legal guidance that directs every part of our federal government to respect and protect our most fundamental freedoms. It’s no coincidence that this legal shift comes the same day as the Department of Health and Human Services finally provided relief from the contraception mandate to those who faithfully dissent.

We are thankful for the priority this Administration placed on religious freedom when President Trump signed Executive Order No. 13798 earlier this year.  The Department of Justice’s legal memo today is the implementation and enforcement mechanism of that Executive order.

The free exercise of religion is America’s first freedom for a reason. A state that can pave over the conscience rights of any American’s beliefs is a state that can do anything. This guidance from the Department of Justice lays out the bedrock principle of freedom and places it back in the national dialogue. We welcome a continued substantive discussion about religious liberty, because we believe that religious liberty is in the best interest of all Americans.

The legal memo lays out 20 principles of religious liberty and provides instructions for federal agencies to ensure these principles are protected and implemented throughout the government. These principles are consistent with the religious liberty guidance the ERLC provided the Trump Administration earlier this year, which urged them to, among other things:

  • Issue explicit guidance from the Attorney General to the Treasury Department to prohibit the revocation of tax exempt status to an organization based on its religious beliefs;
  • Encourage the Department of Health & Human Services to issue the draft interim final rule providing relief to the contraceptive mandate;
  • Ensure a Religious Freedom Restoration Act (RFRA) analysis is articulated in the process of all future regulations;
  • Reaffirm the First Amendment to the U.S. Constitution and the Religious Freedom Restoration Act as the standard by which conflicts between the federal government and the religious beliefs or actions of citizens are adjudicated; and other ways the government can assure the government protects instead of infringes upon the religious freedom of our fellow Americans.

The religious freedom guidance issued by the DOJ today addresses all of these areas and goes even farther. Here are the 20 principles laid out in the memo:

  1. The freedom of religion is an important, fundamental right, expressly protected by federal law.
  2. The free exercise of religion includes the right to act or not to act in accordance with one’s religious beliefs.
  3. The freedom of religion extends to persons and organizations.
  4. Americans do not give up their freedom of religion by participating in society or the economy, or interacting with government.
  5. Government may not restrict or compel actions because of the belief they display.
  6. Government may not exclude religious individuals or entities based on their religion.
  7. Government may not target religious individuals or entities through discriminatory enforcement of neutral, generally applicable laws.
  8. Government may not officially favor or disfavor particular religious groups.
  9. Government may not interfere with the autonomy of a religious organization.
  10. The Religious Freedom Restoration Act of 1993 (“RFRA”) prohibits the federal government from substantially burdening any aspect of religious observance or practice, except in rare cases where the government has a compelling reason and there is not a less-restrictive option available.
  11. RFRA’s protection extends not just to individuals, but also to organizations, associations, and at least some for-profit corporations.
  12. RFRA does not permit the federal government to second-guess the reasonableness of a sincerely held religious belief.
  13. A governmental action substantially burdens an exercise of religion under RFRA if it bans an aspect of an adherent’s religious observance or practice, compels an act inconsistent with that observance or practice, or substantially pressures the adherent to modify such observance or practice.
  14. Under RFRA, any government action that would substantially burden religious freedom is held to an exceptionally demanding standard.
  15. RFRA applies even where a religious adherent seeks an exemption from a requirement to confer benefits on third parties.
  16. Title VII of the Civil Rights Act prohibits covered employers from discriminating against individuals on the basis of their religion.
  17. Title VII prohibits discrimination on the basis of religious observance or practice as well as belief, unless the employer cannot reasonably accommodate such observance or practice without undue hardship.
  18. The Clinton Guidelines on Religious Exercise and Religious Expression in the Federal Workplace provide useful examples for private employers of reasonable accommodations for religious observance and practice in the workplace.
  19. Religious employers are entitled to employ only persons whose beliefs and conduct are consistent with the employers’ religious precepts.
  20. Generally, the federal government may not condition federal grants or contracts on the religious organization altering its religious character, beliefs, or activities.

We are encouraged by the legal clarity provided through these 20 principles on religious liberty covering issues of great importance to millions of Americans. This legal memo reminds all federal agencies that people of faith do not have to leave their deeply held beliefs at the door when entering their job or public marketplace. This guidance also further enhances our churches’ legal standing if they are treated differently than other organizations by city ordinances when seeking building space and other government services.

Our Founding Fathers didn’t protect religious liberty because they agreed on everything, but because they fundamentally disagreed on so much.

No matter what your religious or political beliefs, all Americans should celebrate these principles. It’s what allows us to advocate and persuade our neighbors in the free marketplace of ideas, while loving our neighbors and serving them.