A Perfect Storm: Religion, Sex and Administrative Law

ABSTRACT:

Agency regulations on sexual and reproductive health easily provoke religious conflict while failing to demonstrate convincing medical excellence.

This is a consequence of two agency characteristics—political partisanship and agencies’ claims to superior expertise—intersecting with U.S. churches’ commitments respecting sexual morality. More and more, U.S. cultural and political norms respecting sex and reproduction diverge from those held by traditional religions. Furthermore, the two major national political parties are increasingly committed to starkly opposed views of sexual and reproductive health, and the place of religion in the nation’s life. Consequently, the Agency charged with rulemaking on sexual and reproductive health—the Department of Health and Human Services (“HHS”)—regularly issues poorly crafted policies that incite charges of religious establishment or violations of the free exercise of religion.

This Article will consider two of the most prominent policies. First, it will consider the Trump administration’s decision to fund primarily those youth sex education programs committed to avoidance or delay of sexual intercourse versus programs instructing teens about reducing the risks of sex by means of contraception. The sex education programs endorsed by the Trump Administration are called Sexual Risk Avoidance (“SRA”) by their creators, but were formerly known as “abstinence” education. These are distinguished from programs involving contraception, which the administration calls Sexual Risk Reduction programs (“SRR”), but proponents call Comprehensive Sex Education (“CSE”). This Article will use the terms for both programs preferred by their supporters, thus SRA for the first, and CSE for the latter.

This Article will also consider the Obama administration’s rule requiring religious institutions to offer health insurance guaranteeing free contraception. This is usually called the “contraception mandate,” although the HHS Secretary and the Food and Drug Administration (“FDA”) have acknowledged that some of the required drugs and devices can terminate already formed human embryos, and are thus more accurately understood to be abortifacients.