Birth control policy not a constitutional law issue

Matter of constitutional principle, WUSTL law professor Magarian says

The current controversy over the Barack Obama administration’s birth control policy is not, contrary to some arguments, a matter of constitutional law, says Gregory P. Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis.


“A 1990 Supreme Court decision makes very clear that religious believers and organizations must abide by generally applicable laws, even when those laws impede religious exercise,” he says.

Constitutional principles, however, are very important for this issue, notes Magarian.

“On one side, even though the administration’s policy does not violate the Constitution’s legal mandate, it may still transgress our best civic or political understanding of religious freedom,” he says.

“Our society does many things that the Constitution does not require to protect the freedom of religion and conscience.”

Magarian says that on the other side, the Constitution stands for principles of equal protection regardless of sex and privacy in intimate matters.

“The position that opponents of the administration are pushing would disproportionately undermine women’s interests,” he says.

“Giving companies the right to deny insurance coverage for contraception, or other medical procedures, would also undermine many people’s personal liberty.

“Again, none of this is about constitutional law, but it is about constitutional principle.”

In Magarian’s view, requiring Catholic employers to provide medical insurance coverage for contraception entails a relatively modest infringement on religious liberty.

“Many Catholic employers and medical providers appear to agree, because many have provided this coverage before the present controversy,” he says.

“Numerous states already require this sort of coverage.

“According to opinion polls, almost all sexually active Catholic women use birth control. In light of the direct and costly impact the Republicans’ plan would have on women’s health and privacy, this does not strike me as a strong ground on which to advocate rights of conscience against the broader public good.”