The Affordable Care Act requires employers that provide health insurance to employees to provide contraceptive coverage for women. Religious organizations that oppose contraception have argued that this violates their religious beliefs and have gone to court to say that they should be exempt under the Religious Freedom Restoration Act (RFRA) that prevents the government from taking actions that would “substantially burden a person’s exercise of religion” unless there is a “compelling governmental interest” and the action is the “least restrictive” it can take.
Three kinds of groups have gone to court and their cases are at different stages.
One consists of private for-profit business. Two such companies Hobby Lobby and Conestoga Wood Specialties have argued that the religious beliefs of the owners of these companies pass through to the companies themselves and thus the companies should be exempt from government rules that violate their religious beliefs. They won their case at the Appeals Court level and the US Supreme Court will hear oral arguments on March 25, 2014.
But explicitly religious organizations have also challenged the requirement. When the Catholic church and other religious groups objected, the Obama administration created an accommodation for them, saying that that they could claim a religious exemption from providing and paying for such contraceptive services and shift the responsibility and cost to the health insurance companies that still had to provide the services but which would recoup their costs in other ways. All the religious organization had to do was submit a form to the government that would enable them to be exempt from paying for the coverage and inform their insurance companies to that effect.
But even this modest requirement was too much for them. A Catholic religious order known as Little Sisters of the Poor said that merely filling out such a form exempting themselves violated their religious beliefs and they took their case to court. (Note that despite its faux-humble name, this organization of nuns is a big worldwide operation and employing many people.) While their case was pending, they asked for an injunction that would excuse them from complying with the requirement that took effect on January 1, 2014. The District Court denied their request for an injunction, as did the Tenth Circuit Court of Appeals. They made an emergency appeal to US Supreme Court and justice Sonia Sotomayor granted it on December 31, 2013. The full Supreme Court affirmed her injunction on January 24, 2014 saying: “To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.” So we will have to await the outcome of that case as its works its way through the lower courts.
The third category lies between the other two and consists of nonprofit organizations that are not explicitly religious but have a religious orientation and also want to avoid complying with the ACA mandates. They are making the same claim as Little Sisters, that filling out the form constitutes a violation of their religious beliefs under RFRA. Such a claim was brought by the University of Notre Dame and rejected by a US District Judge. The university then appealed to the Seventh Circuit Court of Appeals that last Friday also ruled against them.
Its opinion first scolded Notre Dame for waiting until the last minute to file its suit and sending in the form anyway as a precaution against having files levied against it and otherwise botching the whole process. But then the court went on to address the merits of their arguments and it was quite sarcastic.
Under RFRA, the government cannot impose an undue burden on religious people and must show compelling interest in doing so. But as the court noted, the burden here is hardly onerous.
The form is two pages long—737 words, most of it boring boilerplate; the passages we quoted earlier, the only ones of consequence, consist of only 95 words. Signing the form and mailing it to Meritain and Aetna could have taken no more than five minutes. The university claims that there are other paperwork requirements; there aren’t. The only colorable burden it complains about has nothing to do with time or cost; it is that by filling out the form and sending it to the companies it “triggers” their coverage of the contraception costs of the university’s female employees and students, and that this makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine, which in the name of avoiding “scandal” forbids the encouragement (equivalent to aiding and abetting) of sinful acts. (p. 13)
You have to read the full ruling to realize the craziness of the arguments brought up by the university.
The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs, as by allowing conscientious objection to the military draft—and now exempting churches and religious institutions from the Affordable Care Act’s requirements of coverage of contraceptive services. What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest analogues we have found are cases in which churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice. (p. 20) [My italics-MS]
The court was incredulous at some of the oral arguments made by the counsel for Notre Dame, who said that by sending in such a form, the university would be ‘triggering’ the coverage by another party and thus still violating its religious beliefs.
Consider this further example illustrative of our doubts. Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you” and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement? That seems a fantastic suggestion. Yet confronted with this hypothetical at the oral argument, Notre Dame’s counsel acknowledged its applicability and said that drafting a replacement indeed would substantially burden the Quaker’s religion.
So even filling out a two-page form that gives them a huge benefit violates their sensitive feelings. These people’s religious sensibilities are so delicate that you have to wonder how they get through the day.
[Update: Steven D. Schwinn has more on the Notre Dame ruling.]