by Clint Bolick
Goldwater Institute

A word was missing from the recent editorial: not.

Whatever valid arguments might exist against allowing religious employers to determine whether to provide coverage for contraception or abortions in their insurance coverage, the assertion that the Constitution forbids allowing such choice is not among them.

The editorial goes wrong when it depicts the First Amendment as ensuring “freedom from religion.”  In fact, the First Amendment begins with the words, “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”  The notion that allowing employers to choose what benefits to offer their workers somehow “establishes religion” would make our Constitution’s framers’ heads spin.

Supreme Court precedents long have established a right to contraception and abortion.  Just as strongly, the Court has ruled that those rights do not include having the government subsidize them.  In Harris v. McRae in 1980, the Court ruled that a woman’s right to abortion does not include an “entitlement to the financial resources to avail herself of the full range of protected choices.”

Given that the First Amendment limits government—not private—actions, it follows that if the government does not have to fund contraception or abortions, private employers (whether religious or not) should not have to fund them either.

An analogous situation makes the issue clearer.  We all have a First Amendment right to speak.  Should our private employers be forced to allow us to display our political preferences at our desks?  Or to pay for megaphones to protest company policies in the parking lot?

Of course not.  The First Amendment provides that government should be neutral on matters of religion and allow each of us to follow our conscience.  That means the right of employers to follow their conscience when it comes to which benefits to provide—and of their employees not to work for them (or of all of us not to patronize them) if their choices offend us.

The essence of the First Amendment is preventing government coercion.  Right now, government compels employers to provide certain benefits even if they violate the core beliefs of those required to pay for them.  That violates the First Amendment—but a law allowing employers to choose does not.

How particular individuals exercise their freedom of religion or speech sometimes may offend others.  But each of us has a stake in preserving the freedom of conscience that the First Amendment guarantees.

Clint Bolick is vice president for litigation at the Goldwater Institute.

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