Employers, Birth Control, and Their Date with the Supreme Court
By The Editorial Board | If the harm that Senate Republicans are inflicting on the nation by refusing to consider filling the Supreme Court vacancy were not already self-evident, a case that the remaining eight justices are hearing on Wednesday drives the point home.
The case, Zubik v. Burwell, is a consolidation of seven lawsuits involving women’s access to birth control under the Affordable Care Act. It is the fourth time in four years that the justices have taken up a challenge to the law.
As in several other important cases this term, the court could split 4-to-4, meaning that a crucial legal issue affecting large numbers of people will remain unresolved for at least another year. Because lower federal appeals courts have disagreed in their rulings, a tie vote means the same federal law will affect people differently, depending on where they live.
The question in the Zubik case is a simple one: Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?
The case arose out of a dispute over the Affordable Care Act’s requirement that employers’ health plans provide free contraceptive coverage to their employees. The Obama administration exempted churches, mosques, synagogues and other houses of worship from the requirement. When nonprofit organizations with religious affiliations, like universities, hospitals and social-service groups, argued that they, too, should be exempt, the administration offered them an easy way to opt out: Notify their insurer or the government, in writing, of their refusal to provide coverage. At that point, those organizations have no further role in the process; the government takes over and ensures that employees are given free access to contraceptives.
This accommodation struck a reasonable balance between the government’s respect for religious freedom and its strong interest in carrying out the law’s mandate. But it was still not enough for many religious-affiliated employers, who said that the very act of notification makes them complicit in the provision of contraceptives and violates their religious freedom.
They sued the government under the Religious Freedom Restoration Act, a 1993 law barring any regulation that “substantially” burdens religious practice, unless it furthers a compelling governmental interest that cannot be achieved by less restrictive means. The law was intended to protect religious minorities whose practices may run afoul of certain laws, but it has been invoked increasingly by those who reject reproductive rights or same-sex marriage.
In the 2014 Hobby Lobby decision, the Supreme Court ruled 5-to-4 that the law allowed closely held for-profit corporations to deny contraceptive coverage to employees on religious grounds. Even after that misguided opinion, the first seven federal appeals courts to consider the plaintiffs’ argument in the current case rightly rejected it out of hand. As Judge Cornelia Pillard wrote in a remarkably thorough opinion for the District of Columbia Circuit Court of Appeals, the administration’s accommodation “requires as little as it can from the objectors while still serving the government’s compelling interests.”
This is clearly correct. Notifying the government of a refusal to provide birth-control coverage is not a substantial burden on religion, nor does that notification “trigger” the coverage, which is already guaranteed under the law.
But last September, the Eighth Circuit Court of Appeals went the other way, holding in effect that the burden on the plaintiffs was substantial simply because they said it was.
Such reasoning has no logical endpoint. The Zubik case is not about questioning anyone’s religious beliefs; it is about how those beliefs must coexist within a large and religiously diverse nation. As Judge Pillard wrote, under both federal law and the Constitution, “freedom of religious exercise is protected but not absolute.”
Although a 4-to-4 split between the court’s conservatives and liberals on this case may be likely, it is not inevitable. In the Hobby Lobby decision, the court’s majority opinion suggested that the notification process “achieves all of the government’s aims while providing greater respect for religious liberty.” The justices should heed those words and reject the plaintiffs’ absurd argument.
If you found this blog post of interest, you might want to explore these Free Think University courses:
- Is the Traditional Family Worth Saving?
- Pro-Life, Pro-Choice, or Something Else?
- Should Marriage Be Redefined?
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