Employers' "Right" Not to Pay for Birth Control Analyzed

Some conservative religious employers contend that it violates their constitutional rights to be required to provide birth control coverage for their employees. Here is another reason why that is not true.

In a previous post at Akron Law Cafe I discussed the fact that it is actually cheaper for insurers to provide birth control coverage than to omit it; as a consequence, some religious employers are in effect insisting that they have the right to pay extra so that their employees do not receive free birth control. In yet another post I pointed out the obvious fact that many people - no doubt most people - believe that using birth control is in fact more responsible than not using it.

But there is another aspect of the problem that also must be considered. Why is it assumed that only employers are paying for health insurance? This argument ignores the fact that businesses would have no income if their employees did not generate it.

Employees generate 100% of business income. The income produced by employees pays for all of a business's expenses, including salaries and benefits. Gross income is also the source of all profits, whether dividends or retained earnings. Outside of the duty to pay taxes a private individual or business organization has no duty to use its assets to provide birth control or anything else to strangers, or to part with its assets for no reason. But when a commercial entity enters into a contractual relation with other companies or individuals for the purpose of generating additional income, the benefits generated under that contract cannot be dictated solely by one of the parties to the contract. The economic expectations and religious convictions of the other contracting party should count for just as much. In this case the contract is between employer and employee, and the employer's "rights" should not be assumed to override the rights of the employees.  The rights of employers and employees should receive equal consideration. The law may favor either or neither.

Churches can and should be exempt from the requirement to provide insurance coverage for birth control. But when religious institutions create vast income-generating enterprises such as universities and hospitals it is perfectly appropriate for the law to protect the rights of their employees to coverage for birth control on the same basis as the employees of other businesses, in this case by offering health insurance coverage for birth control on the same basis as other preventive care.