In the Hobby Lobby case 16 months ago, the Supreme Court ruled that a company with owners who objected on religious grounds to birth control was entitled to opt out of the federal requirement to cover contraception in its employee health plan. An opt-out mechanism was already in place for religious nonprofit employers, the court observed. Upon notice to the government of their objection, those employers could pass on their coverage obligation to their insurance companies or, if self-insured, to their third-party insurance administrators.
The court told the Obama administration to make the same accommodation available to for-profit corporations like Hobby Lobby. Women would still get their coverage, Justice Samuel A. Alito Jr. said for the majority, and the net effect on the female employees “would be precisely zero.”
As a resolution to a thorny problem, it sounded almost too easy to be true, and of course, given the toxic mix of religion and politics currently engulfing the country, it was.
A new wrinkle quickly emerged. It turned out that the very mechanism the Hobby Lobby majority held up as a model for how to accommodate the competing concerns of church and state was not accommodating enough for the religious nonprofits themselves. By the dozens, religiously affiliated colleges, nursing homes and similar organizations sued the government on the ground that even having to request the opt-out made them complicit in the eventual enabling of their employees to obtain birth control. These organizations are refusing, in other words, to take yes for an answer.
Seven of these cases have now reached the Supreme Court. At their weekly closed-door conference on Friday, the justices will consider whether to hear any of them. Almost certainly, the justices will accept one or more of the cases. The government had been prevailing in every case until last month, when the United States Court of Appeals for the Eighth Circuit ruled in favor of a Missouri nonprofit corporation, CNS International Ministries, Inc., that runs a residential program for adults with “life-controlling addictions, attitudes and behavioral problems.”
The Eighth Circuit decision, Sharpe Holdings, Inc. v. United States Department of Health and Human Services, is not yet before the court. But it’s worth looking at in some detail, because its central premise is a not-implausible application of Justice Alito’s Hobby Lobby opinion. Writing for the three-judge panel, Judge Roger L. Wollman said that the question was not whether the ministry or its affiliated school “have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.” The judge continued, “Their affirmative answer to that question is not for us to dispute.”
Let’s examine those two sentences, starting with the word “abortifacient,” a substance that causes abortion. The Missouri ministry and the owners of Hobby Lobby are certainly free to believe that the contraceptives to which they object — two kinds of emergency contraception and the IUD — cause abortions. Their belief doesn’t happen to be scientifically correct. The emergency contraceptives, known as Plan B and “ella,” actually work by preventing ovulation, meaning that even if a person believes that a fertilized egg is a human being, as these plaintiffs do, there is no egg to fertilize. IUDs work mainly by preventing sperm from reaching and fertilizing an egg. Occasionally, the copper IUD, one form of the device to which the plaintiffs object, may work by keeping a fertilized egg from implanting in the uterine lining. Many, even most, fertilized eggs fail to implant even in the absence of contraception, which is a reason implantation is the medical definition of the start of a pregnancy. (All this information is readily available from reliable sources all over the Internet, including from the National Catholic Reporter and from the authoritative Guttmacher Policy Review.
Anyone is of course free to believe that pregnancy begins before implantation — or at ovulation, for that matter. Beliefs are relevant in a public policy context only when they are invoked to impinge on the rights of others. It’s striking that neither the Hobby Lobby majority nor the Eighth Circuit panel even inquired into the facts, simply deferring to the sincerity of the plaintiffs’ belief. The reasonableness of a religious belief is something “the federal courts have no business addressing,” Justice Alito said.
In the abstract, that is a harmless enough sentiment. But the problem is that these cases don’t reach the Supreme Court in the abstract. They invoke a federal statute, the Religious Freedom Restoration Act (R.F.R.A.), enacted in 1993 to protect the rights of religious minorities to practice their religion in the face of laws that, for example, criminalize the sacramental use of certain hallucinogens or require individuals to work on their sabbath. Under the R.F.R.A., a federal law that imposes a “substantial burden” on religious practice must serve a “compelling” government interest and do so by the most narrowly tailored means available.
Is a “substantial burden” anything that a religious plaintiff says it is? That is the implication of the Eighth Circuit’s decision and of the majority’s hands-off stance in Hobby Lobby toward the plaintiffs’ assertions about the chain of events that would make them unacceptably complicit in helping their employees get birth control. In her dissent for four justices in Hobby Lobby, Justice Ruth Bader Ginsburg said the connection was “too attenuated to rank as substantial.” And that was for an arrangement under which, had the government prevailed, Hobby Lobby would actually have had to cover contraception — while of course leaving it to its employees to decide whether to take advantage of the coverage. How much more attenuated is the connection for the religious nonprofits who say they can’t even send a letter requesting the available opt-out.
In the appeal the Supreme Court is most likely to agree to hear, Roman Catholic Archbishop of Washington v. Burwell, the plaintiffs maintain that by offering to transfer the obligation from the employers to their insurers, the government proposes to “hijack” and “conscript” their health plans into service to the contraception mandate. But consider that under the rules of the available accommodation, all relationship between the employer and the coverage is severed: The employer has no obligation “to contract, arrange, pay, or refer for contraceptive coverage,” and need not even notify its employees that coverage is separately available through the insurer.
If even this is unacceptable, Solicitor General Donald B. Verrilli Jr. tells the court in the government’s brief, the plaintiffs’ objections “would appear to apply to any system in which their employees gain an entitlement to contraceptive coverage from third parties.” Forgive me for wondering whether the accommodation at hand would have been so vigorously resisted had any president other than Barack Obama been in office — or had the target of the objection not been women presuming to have sex without procreation.
It seems to me that the Roberts Court, having worked assiduously over the last 10 years to elevate the First Amendment’s Free Exercise Clause at the expense of its First Amendment twin, the Establishment Clause, is now approaching a moment of truth. To accept the claims being made here is to plunge into a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents to the benefits designed by a secular government to apply to all. Such a “sweeping understanding” of the Religious Freedom Restoration Act, Solicitor General Verrilli’s brief tells the court, “is inconsistent with our nation’s traditions and finds no support in this court’s precedents.”
The act, signed into law by President Bill Clinton, passed the Senate by a vote of 97 to 3 and the House by a voice vote. It was embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities, not a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society. If this is what the Religious Freedom Restoration Act has become, then I would like to propose a corrective statute. I would call it the Establishment Clause Restoration Act. Its time may be coming.
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