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Mark Rienzi observes the tension in the United States' pluralistic democracy between religious diversity and majority rule. He notes that the Supreme Court has forged a path of religious accommodation, versus forced conformity, and this has not led to anarchy. In the past, the Court and legislatures have sometimes pushed limited religious toleration or even forced conformity. Today, the accommodationist path is illustrated in the Court’s second Jehovah’s Witness-pledge case, and in legislative and Supreme Court treatment of conscientious objectors to military service. Conscience protections for those opposed to abortion have been strong Roe v. Wade in 1973. They have been extended to institutions and individuals, and often protect religious and non-religious objections. Even following the Court’s 1990 case curtailing mandatory Free Exercise accommodations, Congress and many states adopted statutory religious conscience protections. Many states interpreted their state constitutions to provide protections for religious freedom. This has not resulted in anarchy but has preserved the ability of many medical professionals and religious social service institutions to continue their services.
Conflicts over contraception and religious liberty can seem intractable. Both sides make claims of deeply personal rights—believers’ right to religious exercise and consumers’ right to access contraceptives—in a way that suggests one must lose for the other to win. Yet actual facts in court show religious liberty can be respected without creating any threat to healthcare for anyone. People on all sides view contraception as deeply important. Forcing religious pharmacists to distribute contraceptives will not increase supply of contraceptives—it decreases the supply of pharmacies and pharmacists. The Little Sisters of the Poor’s litigation demonstrates that broad contraceptive access and religious liberty can be respected simultaneously. Healthcare is not improved by demanding one moral orthodoxy from all who provide services. We need not agree about contraception’s morality to agree on solutions that protect everyone’s rights. We are best served by embracing pluralism and welcoming the contributions of many people, including those with minority religious beliefs. The contraceptive cases demonstrate how easy it is to get that balance right, and how costly it is to get it wrong.
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