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The ACA and separation of church and state

January 23rd, 2014

by Jonathan H. Burroughs

The inherent tension between organized religion and the nation state is an ancient one and dates back to antiquity when kings were transcendental leaders over the church and were authorized to create and appoint religious leaders and Socrates was condemned to death by the Athenian State in part for his disrespect of the gods.

In medieval Europe, the tension escalated when Kings maintained their divine right to rule over the church while Catholic Church doctrine declared that the pope should be Vicar of Christ on Earth, and therefore, maintain absolute authority over the church and thus indirectly over the state.

During the Protestant Reformation, Martin Luther was the first proponent of a separation of church and state through his "doctrine of two kingdoms," which led to Henry VIII's complete break with the Catholic Church and creation of the Church of England when the church refused to grant his request for divorce with Catherine of Aragon. This created an explosion of conflict that led to the Oliver Cromwell penal laws that punished and imprisoned Catholics in England and the resultant exodus of people seeking religious freedom abroad and in the American Colonies.


So strong were the sentiments against government's interference with citizens' religious beliefs that the U.S. Constitution forbids the establishment of religions by Congress, and the First Amendment to the Constitution protects the free exercise of religion through the establishment clause.

Thomas Jefferson, one of the authors of the Bill of Rights, confirmed the amendment's intent with his oft-cited letter to the Danbury Baptist Association in 1802 in which he articulated the "wall of separation between church and state" stating religion should be a "private matter" and matters of the state "secular and public."

Over the past 212 years the separation of church and state has been redefined and tested in the courts, resulting in a number of high profile U.S. Supreme Court decisions including:

  • Reynolds v. United States (1878): The federal anti-bigamy statute does not violate a Mormon's right to religious practice.
  • Everson v. Board of Education (1947): Reimbursement to bus Catholic children to a public school does not violate a citizen's right to choose a religion.
  • McCollum v. Board of Education (1948): Religious training in a public school is a violation of the establishment clause of the First Amendment.
  • Torcaso v. Watkins (1961): Religious tests (e.g., statement of belief in God) as a requirement for public office is a violation of the establishment clause of the First Amendment.
  • Abington School District v. Schempp (1963): Forced bible reading and prayer in the schools is a violation of the First Amendment.
  • Edwards v. Aquillard (1987): Teaching “creation science” in lieu of evolution in the schools is a violation of the First Amendment due to its religious intent.
  • Allegheny County v. ACLU (1989): A nativity scene inside a government building violates the establishment clause of the First Amendment.

Due to this ongoing conflict, in 1993, Congress passed the Religious Freedom Restoration Act (signed into law by President Clinton) that affirmed that government shall not burden a person's access to religion unless there is a compelling government interest or the religion in some way restricts the government's interest.

Enter the Affordable Care Act, which requires employers to provide employees with birth control and access to abortion-inducing drugs (e.g., RU 486) as preventive health measures. Although churches and houses of worship are exempt from this requirement, religious affiliate organizations, such as charitable organizations, universities, and hospitals, are not.

In an attempt to find a middle ground, the U.S. Department of Health & Human Services on behalf of the Obama administration advised that the religious-affiliated organizations would not be responsible for administering the medications but may sign a form authorizing an insurance company or health plan to do so. This did not appease the concern that participating in an authorization may violate an employer's religious and moral beliefs.

During the federal sequester and shutdown in September 2013, the Republican Party introduced a
"conscience clause" amendment to the ACA as part of a spending bill that would have allowed employers to opt out of providing birth control for moral or religious reasons.

On Nov. 1, 2013, the federal court of appeals for the District of Columbia Circuit decided 2-1 that the ACA birth control mandate "substantially burdened the owner's free exercise of religion and the government failed to survive the 'strict scrutiny' definition of the Religious Freedom Restoration Act of 1993" (Gilardi v. United States Department of Health and Human Services, 2013). Interestingly two of the judges also pointed out that secular corporations cannot exercise religion and so an employer's personal religious beliefs may or may not pertain to federal law.

As predicted, HHS appealed the case to the Supreme Court, which will hear arguments on a related case (Sibelius v. Hobby Lobby) that addresses the rights of business owners to operate a family-owned company without violating their personal religious beliefs on March 25, 2014, with a decision pending early in the summer. The Supreme Court also will hear a similar case (Conestoga Wood Specialties v. Sebelius) that specifically addresses the inclusion of "abortion pills" as a part of the preventive health mandate.

On Dec. 31, 2013, hours before the official implementation of the ACA, Supreme Court Justice Sonia Sotomayor responded to a request from an order of catholic nuns in Denver (Little Sisters of the Poor Home for the Aged) and issued a stay blocking the mandate from taking effect for 200 religious affiliate not-for-profit organizations. This was upheld by a federal appellate court and was not blocked by Congress, thus setting the stage for a formal Supreme Court hearing.

This historic conflict has raised two important questions:

  1. Does the constitution's establishment clause of the First Amendment permit an employer to apply his/her personal religious beliefs to a secular corporation and its employees?
  2. Does the preventive health mandate as it pertains to birth control pills and abortion inducing drugs violate the Religious Freedom Restoration Act of 1993 and its strict scrutiny criteria?

Thus, the natural tension between church and state continues to be defined today through the Affordable Care Act as individuals question the role of the state to impose federal mandates that impact individual religious freedom and choice. The Supreme Court decision likely will be another landmark ruling that will significantly affect healthcare access in the workplace and the definition of where Jefferson's wall of separation between church and state lies.

Jonathan H. Burroughs, MD, MBA, FACHE, FACPE is a certified physician executive and a fellow of the American College of Physician Executives and the American College of Healthcare Executives. He also is president and CEO of The Burroughs Healthcare Consulting Network.


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