The XX Factor

It’s Another Religious Freedom vs. Birth Control Showdown at SCOTUS This Week

Activists outside the Supreme Court in Washington anticipate a decision in Burwell v. Hobby Lobby Stores on June 30, 2014.

Chip Somodevilla/Getty Images

For the fourth time in as many years, the Supreme Court will hear a challenge to the Affordable Care Act on Wednesday. The plaintiffs in Zubik v. Burwell, a cluster of seven lawsuits filed by organizations with religious affiliations, argue that there should be further exceptions to the contraception access guaranteed to women under the ACA.

In 2014, the Supreme Court ruled 5–4 that Hobby Lobby, a nonreligious for-profit company, could claim a religious exemption to the ACA’s contraception mandate based purely on the beliefs of its shareholders. The decision offered Hobby Lobby and its ilk the same solution already granted to religious nonprofits: Instead of offering employee health insurance plans that cover contraception, the religious employer simply notifies the Department of Health and Human Services in writing that it will not subsidize a plan that covers contraception. Then, the government tells the third-party insurer to offer free contraception to employees using segregated funds, without any further participation from the employer. (Actual houses of worship are completely exempt from the requirement; their insurers don’t have to cover contraception at all.)

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Now, seven religiously affiliated employers, including social service organizations and universities, are protesting that their religious objection to contraception is so strong that even writing a note to exempt themselves from covering it is too close an association. They say that giving the government their insurers’ contact information is a direct step toward delivering contraception and that the government will use their insurance plan’s existing infrastructure to provide contraception.

The question before the court is whether this provision of the ACA is a substantial burden on the plaintiffs’ religious practice, and if so, whether that burden is justified as the least restrictive way to serve a compelling government interest. Established by the Religious Freedom Restoration Act of 1993, the “substantial burden” threshold was instated to defend religious minorities whose practices may be at odds with the law. In recent years, Christian organizations have used it to justify discrimination against LGBTQ people and stand nobly between their employees and a pack of birth control pills, à la Hobby Lobby.

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Amicus briefs filed in support of the U.S. government in this case have laid out a wide range of justifications for the existing ACA exemption system. The Guttmacher Institute explains that eliminating barriers to contraception access reduces unintended pregnancies, which reduces the need for abortion and improves outcomes for women’s health, education, and economic security—a clear interest for the U.S. government. A group of doctors’ associations, including the American College of Obstetricians and Gynecologists, agrees: “The Centers for Disease Control and Prevention identified family planning as one of the greatest public health achievements of the twentieth century, finding that smaller families and longer birth intervals contribute to the better health of infants, children, and women, as well as improving the social and economic roles of women.” A brief from the Anti-Defamation League advises that, contrary to the plaintiffs’ argument, the government is not obligated to take their word for it that the burden is substantial: “Substantial burdens are not measured by the fervency of subjective belief, but rather the significance of objective effect.”

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In the Washington Post, law professor Douglas Laycock—who, it’s worth noting, is generally a religious liberty proponent and supported the plaintiffs in Hobby Lobbyargues persuasively that, if the Supreme Court rules in favor of the plaintiffs, actual legal protections for religious freedom could be at risk. The plaintiffs’ declaration that only they can define what’s a substantial burden for them—and that the government must blindly agree—opens the door for ever more absurd claims to religious exemptions, which the government will have no authority to adjudicate. This would make a mockery of legitimate cases of religious oppression. “Only the believer can say what is a substantial burden religiously. But courts must say what is a substantial burden legally,” Laycock writes. The plaintiffs also argue that the government cannot exempt insurers of houses of worship without also exempting insurers of other religiously affiliated organizations. If the Supreme Court agrees, Laycock contends, the ruling would dissuade lawmakers and government agencies from making any religious exemptions at all, since they could never be narrow enough to be effective.

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As it is, the notification system opposed by the Zubik v. Burwell plaintiffs seriously stretches the definition of a “substantial burden” on religious practice. These employers have established their organizations in a democratic republic with laws and a set system of governance. “Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?” asked the New York Times in a strong editorial in Monday’s paper. The law now covers contraception for anyone who wants it, save for employees of actual places of worship. It does not mandate that any specific woman or group of women take contraception. It does not mandate that any anti-contraception employer pay money to provide contraception for its employees. It does, however, require that anti-contraception employers not block its employees from obtaining medical coverage that is granted to them by law.

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It is my humble opinion that indirectly funding birth control by means of an employee health insurance plan is not a substantial burden, either. It’s simple compliance with the law—and think of how many other objectionable things individuals and employers fund, to comply with the law, through taxes. There’s no conscientious objector exemption from my taxes that go to drone strikes, or contraception obtained through Medicaid, for that matter. My elected representatives decide that the government has a compelling interest in protecting our nation’s security (or the health and human rights of its women and children), and they authorize what they deem to be the best means of achieving it.   

But hey—the court already disagreed with me on that point in its Burwell v. Hobby Lobby ruling. In fact, as the Times points out, the majority opinion in that case stated that the notification system under review in Zubik v. Burwell “achieves all of the government’s aims while providing greater respect for religious liberty.” If the plaintiffs still feel too burdened by the act of providing the government with their insurers’ information, there’s already another route they can take: Don’t offer any health insurance at all, and pay the tax penalty instead.

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