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Dec 05 2013

The Contraception Mandate and RFRA

Bruce Ledewitz, a law professor at Duquesne University, has a column in the Pittsburgh Post-Gazette about the dozens of legal challenges to the contraception mandate in the Affordable Care Act. First he explains that companies don’t actually have to provide contraception as part of their group policies:

What the editorial did not make clear, however, is that religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.

One may doubt the economics of this arrangement — how could the coverage really be free? — but this was not the objection of the religious plaintiffs in this case. They objected to the presence of certain coverage in their policies and even objected to forwarding a list of employees. This claim has been raised by religious employers in litigation across the country.

To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement.

Next he argues that this is a problem with the Religious Freedom Restoration Act, passed by Congress in 1993 to allow religious groups and individuals to get exemptions from generally applicable laws if they place an “undue burden” on their free exercise of religion and do not serve a “compelling governmental interest.” He also argues that if those companies win their suits, RFRA could be overturned.

The problem is the Religious Freedom Restoration Act itself, which provides a statutory claim of exemption whenever a religious claimant feels that his religious liberty is substantially impaired by a federal law. RFRA has encouraged all manner of extreme assertions of religious liberty against the Affordable Care Act.

Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.

RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases…

I consider myself to be a defender of religious-liberty claims against legal requirements that threaten religious conscience. I am part of an informal coalition of law professors who lobby state legislatures to include religious exemptions in gay marriage legislation.

But if RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.

I doubt that last prediction, but I think he’s right about the breadth of the religious exemption being demanded here. If the companies challenging this policy win, their argument would apply equally well in suits seeking to gut the nation’s anti-discrimination laws. If a person’s “deeply held religious beliefs” are enough to eliminate their requirement to comply with this law, why would it not also eliminate their requirement to comply with laws that forbid discrimination against gay people, women or racial minorities?

15 comments

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  1. 1
    holytape

    It is against my deeply held religious beliefs to pay taxes….. Strange how that one never even makes it to court.

  2. 2
    timberwoof

    One very important lesson that came out of the Middle Ages was that there must be one law for all, and not three separate sets of laws for nobility, clergy, and peasant. It appears that the United States is heading back into that aspect of the Middle Ages. The dream is fading.

  3. 3
    thascius

    Ed wrote- “If a person’s “deeply held religious beliefs” are enough to eliminate their requirement to comply with this law, why would it not also eliminate their requirement to comply with laws that forbid discrimination against gay people, women or racial minorities?” Exactly. That’s not a bug, it’s a feature. Heck, businesses that have been sued for discriminating against gays and lesbians in states with legal protections have already invoked that principle, so far unsuccessfully as far as I can tell.

  4. 4
    Raging Bee

    The RFRA itself should be struck down, both on “establishment” grounds (since on;y people with religious beliefs get special rights to block the implementation of laws) and on “vagueness” grounds (can the law distinguish between an “established” deeply-held belief and one I just made up?).

  5. 5
    coragyps

    David Green over at Hobby Lobby is whining about having to “provide coverage” for contraception to his employees. Why doesn’t he simply forbid any of his people to use contraception? He could also limit maternity leave to, say, two days so that it wouldn’t cost as much as, say, the six weeks like allegedly progressive companies give.

    And not to be prying or nuthin’, but Mr Green is 72 years old and has 3 – only 3 – children. Rhythm method, d’ya think? Abstinence almost-entirely? Couldn’t have been contraception, surely!

  6. 6
    Modusoperandi

    It’s against my deeply held religious beliefs to support ladyparts via non-monetary compensation, for some reason.

  7. 7
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @Moduoperandi

    Yes, I have an odd suspicion that the vast majority of the men who are all atwitter about not supporting the health of ladyparts are actually quite interested in healthy ladyparts and insist -insist!- on not only interacting with ladyparts, but on the health and cleanliness of those ladyparts with which they interact.

    I really can’t see many of them being all, “Ladyparts? ho, hum. Sure. Whatever. I don’t support them, b/c god told me that I can’t forward the names of my employees to people who intend them to be healthy (right there in Philadelphians II 6:9 “Thou shalt be so separated from the sticky bits of others that thou shalt not even speak the names of others if this will in any way forward any type of congress with sticky bits.”). But it’s not like I care about Ladyparts! It’s just me indifferently following all parts of my holy book’s commandments with equal care.”

    Especially when so many of them shave and eat pork and mollusks.

  8. 8
    Reginald Selkirk

    David Green over at Hobby Lobby is whining about having to “provide coverage” for contraception to his employees.

    Hobby Lobby is only concerned about forms of contraception which they (incorrectly) equate with abortion; e.g. Plan B. They take pains to point this out, as if to say, “we may be crazy, but we’re not that crazy.” But there’s a new player on the field who is that crazy:
    Notre Dame Suit Says Compromise On Birth-Control Rule Is Inadequate
    Notre Dame is owned by the Holy Roman Ctholic Church, which opposes almost all effective means of contraception including the pill and condoms.

  9. 9
    erichoug

    IF the plaintiffs suing over the ACA contraception mandate are successful in their suit, wouldn’t that then open the door to groups like the Christian Scientists claiming that supplying insurance that provides ANY medical care, aside from prayer is an undue burden on them?

    This just proves that the ACA didn’t go far enough and should have split health insurance from our employers. That way, these sort of arguments would simply be moot.

  10. 10
    howardhershey

    There are religious people who do object to that portion of taxes that pays for the military. They have to pay it anyway or go to jail. And corporations are perfectly free to proselytize their employees to not use contraceptives and certainly don’t have to use them themselves (say when they, as a corporate entity, have sex with another corporate entity — these positions are not included in the Kama Sutra). That can be done without forcing your religious or moral views on your independent adult employees, who actually might have sex. My guess is that if you charged such corporations more based on the increased health care costs of repeated pregnancy if their employees chose not to use contraceptives if the cost were out-of-pocket (one can use pregnancy rates in third-world countries as the base line), they would quickly change their tune.

  11. 11
    Michael Heath

    Ed writes:

    I think [Bruce Ledewitz's] right about the breadth of the religious exemption being demanded here. If the companies challenging this policy win, their argument would apply equally well in suits seeking to gut the nation’s anti-discrimination laws. If a person’s “deeply held religious beliefs” are enough to eliminate their requirement to comply with this law, why would it not also eliminate their requirement to comply with laws that forbid discrimination against gay people, women or racial minorities?

    When has consistency ever been a conservative virtue? Not that Ed’s claiming the opposite.

    I have high confidence that at least three of the five conservatives on the court will contrive a way to rule in a way favorable to these conservative-managed entities; while simultaneously claiming their opinion doesn’t threaten protections against other protected classes.

  12. 12
    Francisco Bacopa

    More proof that religious people are whining amoral scum.

    Did I speak too strongly? Religious people are amoral monsters to the extent that they believe that morals come from God. But Got is no solution to problems in metaethics if they cannot establish that God exists. And even if God did exist and things were right or wrong because he created everything and could kick our asses in Hell forever for disobeying him they have only established that God is a monster and that right and wrong are just compliance to the will of a monster.

    This is why there is no final solution to the problem of religious people other than for atheists and secularists to gain the means of state coercion to force them to comply with our will. We can never be safe until we have this power.

  13. 13
    Modusoperandi

    Francisco Bacopa “This is why there is no final solution to the problem of religious people other than for atheists and secularists to gain the means of state coercion to force them to comply with our will. We can never be safe until we have this power.”
    I’m no more comfortable with you saying that than when they say something similar.

  14. 14
    skinnercitycyclist

    I would have thought that any law should “serve a ‘compelling governmental interest.’”

  15. 15
    steve84

    Once upon a time, Antony “Fat Tony” Scalia didn’t buy it either:

    ” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 — contradicts both constitutional tradition and common sense”
    - Employment Division v. Smith

    But this being Scalia, he will say the opposite in this case.

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