With the Supreme Court’s 5-4 decision, Burwell v. Hobby Lobby Stores, last summer, one would have thought that bouts over the Affordable Care Act and contraceptive coverage would be out of the news. Alas.
Under the Affordable Care Act, the Department of Health and Human Services (HHS) mandates that employers provide free contraception. In Hobby Lobby, the court held that closely held for-profit corporations may object, on religious grounds covered by the Religious Freedom Restoration Act (RFRA), to covering certain kinds of contraception in their insurance plans.
Corporations like Hobby Lobby were provided an “opt-out” from the contraception mandate: they agree to let the government pay for the objectionable forms of contraception. Other religious organizations, though, have not found this accommodation adequate, leading to a new case, Zubik v. Burwell, that has now reached the Supreme Court. Most prominent among the plaintiffs are the Little Sisters of the Poor, an order of Catholic nuns who run nursing homes. To understand their complaint, though, we need to consider Hobby Lobby and RFRA more closely.
Before developing my case, though, I want to emphasize what Burwell is not about. It is not about whether anyone should have access to free contraception. No one who would otherwise have access to free contraception is at risk of losing it. A decision completely acceptable to the Little Sisters is consistent with every employee who wants contraception, getting it. Furthermore, neither the constitutionality of the HHS contraception mandate nor that of Obamacare is at stake.
Now, where does RFRA come from? Its history begins with Employment Division v. Smith, in which the Supreme Court upheld a decision to withhold employment benefits from two Native Americans who tested positive for peyote, which they had consumed for religious reasons and therefore claimed were free to do under the Free Exercise Clause of the First Amendment. The Court was unable to overrule the decision strictly on First Amendment grounds, for, it claimed, the law restricting peyote was “generally applicable” because it did not not target any religion specifically.
This restriction on religious practice, though, was widely recognized to be unsatisfactory, for which reason Chuck Schumer (D-NY) and Ted Kennedy (D-MA) introduced RFRA to the Senate and House; the bill received nearly unanimous bipartisan support and successfully made possible the accommodation of this Native American religious practice that everyone recognized was appropriate. In this way, the passage of RFRA was a fine model of American constitutional democracy. The Supreme Court did not invent constitutional principles to achieve a conclusion that it liked but rather did what it could and then pitched the question to Americans’ elected representatives, who crafted a bill attractive to everyone.
The logic of RFRA is eminently reasonable. It requires that the government can only (a) substantially burden (b) religious exercise when doing so is (c) the least restrictive means to accomplishing (d) a compelling government interest. In plain terms, RFRA just says: Don’t make it really hard for anyone to practice his or her religion, unless you really have to—that is, unless the government’s interest is really compelling or there are no reasonable alternatives.
Take the case of Hobby Lobby. The owners of Hobby Lobby object on religious grounds to paying for certain forms of contraception. So long as the belief is apparently sincere, the court does not evaluate its plausibility, just as it does not evaluate the plausibility of the spiritual value of peyote. Since this religious practice (not providing certain contraception) would have led to prohibitive fines, the mandate imposed a substantial burden on Hobby Lobby’s religious exercise. Now, we can grant that there is a compelling government interest in the general provision of contraception; still, RFRA exempts Hobby Lobby because it has not been established that requiring Hobby Lobby to provide contraception is the least restrictive means to accomplishing the government’s interest. It is not the least restrictive means because the government has shown itself capable of exempting religious organizations like churches and synagogues (which the HHS mandate always exempted).
Hobby Lobby found the accommodation (where the government, rather than Hobby Lobby, pays for the objectionable forms of contraception) acceptable, but other religious groups like the Little Sisters have not. They do not object to paying for contraception but rather to being instrumental in providing it. The Little Sisters are to be accommodated by signing “Form 700,” which allows the government to pay for contraception through their plan. The Sisters object because this still involves them in facilitating the provision of contraception. Note that their objection is not to their secular employees using contraception, a result which they are not aiming to prevent.
Some have charged that this does not make sense. How can signing a form substantially burden religious exercise? What could be easier? This complaint, however, misunderstands RFRA. The government cannot legally determine whether complying with a law violates someone’s religion — much less, how seriously compliance violates someone’s religion.
Rather, substantial burden and religious exercise pose two separate questions. First, what constitutes religious exercise for the Little Sisters of the Poor? Their religion requires them not to be complicit in providing contraception, so their religious exercise involves not signing Form 700. Second, under the current law, does religious exercise impose a substantial burden on the Little Sisters? Yes, because if they were to practice their religion, they could meet debilitating fines of $70 million per year ($100 per employee per day). The question is not whether complying with the law is a substantial religious burden; it is whether the law imposes a substantial burden on those who adhere to their religion.
So the HHS mandate does pose a substantial burden on the Little Sisters’ religious exercise. To see whether RFRA applies, though, more has to be said. Granting again that the government has a compelling interest in providing contraception to the secular employees of the Little Sisters, there remains a question of whether burdening the sisters’ religious exercise is the least restrictive means to accomplishing this interest. If it were, then the HHS mandate might still apply to the Little Sisters.
But patently it is not the least restrictive means. The government has reasonable alternative ways of providing free contraception to the Little Sisters’ secular employees. Free contraception could be provided through Obamacare exchanges, for example.
It is hard to see why this is a battle the Obama administration feels it necessary to fight. The Obama administration has demonstrated how easy it would be to accommodate the Little Sisters of the Poor, for not only can religious organizations like churches and mosques be exempt from the mandate, but so can companies whose insurance plans are grandfathered (like Exxon Mobil). The idea that the Little Sisters of the Poor must violate their consciences or else be fined out of existence is perverse.
With Justice Antonin Scalia’s death in February, the court is likely to split 4-4 on Burwell, although the Court’s order asking for additional briefings looks promising for the Little Sisters of the Poor. This is unfortunate, because this case really is a no-brainer, and opposition to it largely seems to stem from misunderstandings about what is at stake and how RFRA works. I honestly do not believe that liberals could take great pleasure in forcing a group of nuns either to violate their consciences or to stop serving the elderly poor. What is there to gain, when access to contraception is not even at stake? There is a resolution available that can make everybody happy, and fortunately, it is reasonable, constitutional, and coherent with existing law.
Greg Brown is a mathematics major graduating from Swarthmore in 2016.
Featured image courtesy of The Atlantic.