Today, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, denounced the premise of a Judiciary Committee hearing on the Administration’s decision to provide access to free universal birth control, and derided ongoing efforts among Republicans to exploit religious liberties concerns in order to undermine women’s reproductive rights.

“99% of all American women who are sexually active in their lifetimes use contraceptives and, currently, nearly 38.5 million women are using some method of contraception,” said Nadler.  “Their interests cannot be ignored and should not be cast aside….I fear that those who continue to object truly seek to block women’s access to contraceptive services altogether.  But the Constitution does not grant them that right and, in fact, guards against that risk.  Sacrificing the rights and needs of women, and of the public health, by removing the requirement for these critical services or broadly exempting anyone who might object, is neither wise nor is it constitutional.”

Below is the text of Nadler’s opening statement, as prepared:

“The title of this hearing suggests that we need only consider the religious liberty of those who object to coverage for contraception.  It does not even hint at the significant interests of the government or of the millions of women and families who seek access to safe and affordable contraceptive services.

“Neither Congress nor the Executive Branch is free to ignore these interests, and – far from waging a war on the Constitution or on religion – President Obama and his Administration have sought a sensible balance that ensures that all women have access to free contraceptive services and honors the religious beliefs of those who object to providing or paying for these services.

“A ‘sensible balance’ is exactly what is required by our laws and Constitution.  As one of the architects of the Religious Freedom Restoration Act of 1993 – or RFRA – I worked hard to overturn the Supreme Court’s decision in Employment Division v. Smith.  As we explained in our findings to RFRA, the core principle we codified by restoring the ‘compelling interest’ test for laws that substantially burden religion was the need for ‘sensible balances between religious liberty and competing prior governmental interests.’  RFRA was supported by a broad coalition ranging from the ACLU to the National Association of Evangelicals, and both Chambers of Congress passed it with overwhelming bipartisan majorities.

“The Constitution also demands a sensible balance.  Where – as is the case here – the government chooses to accommodate religious beliefs, even if doing so is not constitutionally required, the government must also take into account the interests of those who do not benefit from the accommodation.

“In striking down Connecticut’s law allowing Sabbath observers to take their Sabbath day off work in Estate of Thornton v. Caldor, for example, the Supreme Court found that, because ‘the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath,’ it constituted an ‘unyielding weighting’ in favor of religion that violates the First Amendment.  In the 2005 case of Cutter v. Wilkinson, the Court made clear that ‘an accommodation [for religion] must be measured so that it does not override other significant interests.’

“In addressing the exact question at issue here, the California Supreme Court upheld application of a contraceptive coverage requirement, finding that exempting religiously-affiliated charities would ‘increas[e] the number of women affected by discrimination in the provision of health care benefits,’ whose interests could not be overlooked.  As the California Supreme Court explained:

Strongly enhancing the state’s interest is the circumstance that any exemption from the [state contraceptive coverage requirement] sacrifices the affected women’s interest in receiving equitable treatment with regard to health benefits.

“The Administration’s policy is an attempt to balance competing rights and, in seeking a sensible balance at the federal level, the Administration understandably looked to California’s experience and modeled its initial August 2011 exemption for ‘religious employers’ on laws like California’s and New York’s, both of which have been upheld as constitutional by their State’s highest courts. 

“This original exemption for ‘religious employers’ was criticized as too narrow because it would not include religiously-affiliated hospitals, universities, and charities that serve and employ persons from a variety of faiths, many of whom may not share their religious beliefs.  Responding to these concerns, President Obama and Secretary of HHS Kathleen Sebelius crafted an additional accommodation that establishes a safe harbor for a year (until August 1, 2013).  During this time, a final rule will be promulgated that still ensures that all women have access to contraceptive services.  But objecting religious organizations will not have to provide or pay for these benefits.  Instead, insurance companies will contact employees and offer these benefits to them directly and free of charge.  The Administration has said that this is workable because covering contraception saves money, and that insurance companies will not be permitted to increase premiums of objecting employers to cover the cost of contraceptive services.

“Many who objected to the original rule as too narrow support this approach.  For example, the Catholic Health Association said it was ‘very pleased with the White House announcement’ and it ‘looked forward to reviewing the specifics.’  The Association of Jesuit Colleges and Universities ‘commended the Obama administration for its willingness to work with us on moving toward a solution’ and ‘looked forward to working out the details of these new regulations with the White House.’

“Others are not satisfied.  The United States Conference of Catholic Bishops, for example, initially called the plan a ‘step in the right direction’ but later condemned it, taking the position that ‘the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.’  Some Members of Congress have also called for rescission of the requirement or, in the alternative, for legislation that would exempt any employer or insurer from providing any services to which they object on religious or moral grounds.  These proposals – like H.R. 1179, the ‘Respect for the Rights of Conscience Act of 2011,’ cause grave constitutional concerns by granting an unyielding weight to the interests of religious objectors at the expense of all others.    

“Where, in these demands for complete removal of or exemption from the requirement for preventive contraceptive services, is there any acknowledgment or protection of the religious, health, and economic rights of women or the significant public health interest that the government shares in improving the well-being and health of women and their families? 

“99% of all American women who are sexually active in their lifetimes use contraceptives and, currently, nearly 38.5 million women are using some method of contraception.  Their interests cannot be ignored and should not be cast aside.

“We are likely to hear that requiring access to cost-free contraceptive services – and making those services part of routine, preventive care – is not necessary.  Women can easily get contraception at a local clinic or over the internet, this care is inexpensive, and removing the requirement of coverage will not really harm women or their families. 

“Most of the people making these claims are not public health experts.  They are not doctors.  They are not Sandra Fluke’s friend at Georgetown Law, who could not afford the out-of-pocket costs required to continue prescription birth control that stopped cysts from growing on her ovaries.  Without this medication, a tennis-ball size cyst grew and required a trip to the emergency room and complete removal of an ovary.  Ms. Fluke’s testimony, provided at a hearing held last week by Minority Leader Nancy Pelosi, provides several compelling examples of the cost barriers to obtaining contraceptive services and the real harm caused by inadequate access to that care.  I ask that her testimony be included in the record for this hearing as well. 

“Today, we have a doctor and public health expert with us.  Dr. Linda Rosentock is the Dean of the School of Public Health at UCLA.  She also chaired the Committee on Preventive Services for Women, convened at HHS’ request by the Institute of Medicine – a nonpartisan organization responsible for advising the federal government on issues of medical care, research and education  – to study and make recommendations regarding the preventive services that should be provided to women at no cost, as was required of HHS by Congress in the Affordable Care Act. 

“HHS accepted all of the IOM’s eight recommendations, one of which was to include FDA-approved contraceptive services as part of routine, preventive care for women because of the tremendous benefits that family planning provides for women and their families.  I look forward to hearing from Dr. Rosenstock about this decision.

“I also urge all of my colleagues to set partisan politics aside for a moment and consider carefully the accommodations that the Administration has proposed. 

“I believe that the President and Secretary Sebelius can and will achieve a workable balance.  They already have gone beyond what I believe is required as a purely legal matter to accommodate religious belief, though I support their laudable work to ensure that any burden on religion will be minimal, which the proposed rule ensures by removing objecting employers from the equation. 

“I fear that those who continue to object – and do so despite the fact that their right to decline to participate in the provision of preventive contraceptive services has been respected – truly seek to block women’s access to contraceptive services altogether.  But the Constitution does not grant them that right and, in fact, guards against that risk.  As Judge Learned Hand once explained, the First Amendment ‘gives no one the right to insist that in pursuit of their own interests other must conform their conduct to his own religious necessities.’  Sacrificing the rights and needs of women, and of the public health, by removing the requirement for these critical services or broadly exempting anyone who might object, is neither wise nor is it constitutional.”

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