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Feb 24 2014

The extremely delicate sensibilities of some religious organizations

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.]

18 comments

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  1. 1
    Kevin, Youhao Huo Mao

    If I was King for a Day, I would take cases like these and say “fine, now nobody gets an exemption.”

  2. 2
    Cuttlefish

    In truth, this is why many Quakers chose to go to prison rather than to serve in some sort of conscientious objectors’ alternate service (e.g., scientific studies on semi-starvation, or even working in a hospital). I have friends who went to prison because, had they worked at a hospital, that would have freed up another person to be sent to Vietnam, whereas now they were keeping someone employed as a prison guard and away from the war.

    It may have seemed foolish to the court, but this “fantastical suggestion” was precisely their reasoning.

  3. 3
    Cuttlefish

    I suppose I should add that, back then, I was a member of a pacifist church as well, and fully intended to go to prison if I had been drafted. Mind you, that was a high school kid’s perception, and I have no idea what I *actually* would have done, but it was certainly on the minds of those of us in peace churches.

  4. 4
    Mano Singham

    @Cuttlefish,

    That’s an interesting insight into the comprehensiveness of the Quakers’ views. Wouldn’t the draft board have drafted someone in place of the Quaker who went to prison?

  5. 5
    Rob Grigjanis

    Whatever happened to “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s”? I’m sure the Romans spent lots of tax money on things many subjects found theologically objectionable.

  6. 6
    Crimson Clupeidae

    Interesting. If the ‘reasoning’ for the quasi-religious organizations are held up, then the same argument can be used by atheists to get rid of religion’s tax free status. After all, if just filling out forms can be considered a violation of their beliefs, then actively paying taxes while exempting churches (many of whom, in turn, hide or otherwise abet real crimes like child molesting) from those same taxes is a much more direct support by those of us who would just as soon see the churches all fold and go away.

  7. 7
    Rob Grigjanis

    @Mano:

    Wouldn’t the draft board have drafted someone in place of the Quaker who went to prison?

    Yes, I’d think they’d have to make up the numbers somehow, even if not on a strictly one-for-one basis.

  8. 8
    doublereed

    The idea of a corporation gaining religious freedom seems like one of the most psychotic, corporatist thing I’ve ever heard. Though this court did approve Citizen’s United, so it actually has a chance of passing. How terrifying.

  9. 9
    Chiroptera

    Mano Singham, #4:

    I think the Quakers aren’t asking that they be given exemptions, but that war is evil in general and no one should be forced into service at all. The idea isn’t that they refuse to take their exemption: they are attempting to gum up the works, at least in a small way. Sure, someone else will be drafted in a conscientious objector’s place; but at the same time, extra people have to be spending extra time in working out the extra paper work for a “draft evader,” judicial proceedings have to be held, jails are spending more work hours and money to house the evader, and so forth.

  10. 10
    Mano Singham

    @Wylannn,

    But the exemption only applies to religious beliefs so unless atheists are willing to say that theirs is a religious belief too (something I disagree with), RFRA would not apply to them

  11. 11
    richardelguru

    The solution to this in three words: “National Health Service”

  12. 12
    ahcuah

    If for some reason Notre Dame (and the Little Sisters) won, it would be easy enough to change the exemption so that the employees themselves notify their insurance company. It would be a simple certification that said that their employer refused to provide contraceptive coverage. So, any victory for Notre Dame would be purely Pyrrhic.

    But it sure would be interesting to see what other excuse Notre Dame would come up with.

  13. 13
    Cuttlefish

    Many @#4–

    First off, what Chiroptera @#9 said.

    Second… if the government will, as a given, draft someone else to replace me, and I go to work in a hospital as alternative service, then A) some hospital worker no longer has that deferment, and B) someone who might have otherwise been a prison guard is now on the front lines. It’s the Vietnam War version of the jellyfish story: while I can’t save them all, it made a difference to those two.

  14. 14
    richardrobinson

    There is an important distinction between Notre Dame and our Quakers. While the Quaker’s refusal of conscientious objector status is religiously based, and that action has the effect of in some small way forwarding the Quaker’s religious beliefs, no one else in this scenario is being compelled to become a pacifist themselves. Any one of the people “saved” by the Quaker could voluntarily join the infantry.

    At Notre Dame, they are essentially arguing that the religious exemption only counts if the school can in fact compel others to conform to their religious belief. They want literally to prevent the health insurance company from covering what they find objectionable.

  15. 15
    astrosmashley

    You know, it just occurred to me that these ‘exceptions’ encroach on the insured-person’s right to ‘patient confidentiality’. When does an employer get to ask you the nature of your upcoming doctors visit…? Hint (never). Also employers would have to get into the business of ‘crafting’ cafeteria policies through reputable companies, and I don’t see that happening, just imagine the nightmare of recalculationg all those amortization tables!

  16. 16
    smrnda

    I also think this is a violation of the rights of insurance companies (never thought I’d be sticking up for them.) Employers, as far as I can tell, can negotiate a plan with a health insurer, but they don’t get to line item veto actual medical treatments they don’t feel like covering or would have to bargain and no insurance company will think contraception is a bad thing.

  17. 17
    mary

    What happens if the CEO of an Insurance company has ‘sincerely held religious beliefs’ and does not ‘believe’ it is right to provide contraception products or whatever else? Will they be able to use the same arguments and deny coverage?

    What a whole big heck of a mess this could become.

  18. 18
    richardrobinson

    No, mary, because no one is required to operate an insurance company. The law says that if you operate a health insurance company, you have to cover contraceptives. If you find that objectionable, you could simply choose not to offer health insurance.

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