The ACA’s Heavy Burden

by The Editors

Clinton nostalgists look back on the occasionally picayune controversies of that time — State of the Union endorsements of school uniforms — and conclude that such trivia were a sign of national health, of things being so good that we had nothing more important to debate. Subsequent events ranging from 9/11 to the mortgage meltdown suggest that there was rather more impressing business to be taken care of in the 1990s, but our political leaders were too short-sighted to appreciate it. Similarly, the fact that the Supreme Court is being asked to review the manner in which Hobby Lobby manages its employee-benefits program might seem to some like the inflation of the trivial to absurd proportions, but there is a fundamental issue in question: Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

As it stands, exemptions for moral objectors to the ACA’s contraception mandate are in effect restricted to houses of worship. What that means is that the First Baptist Church of Anytown, USA, may be corporately exempted from the mandate while each of its members is subject to it in their roles as business owners or members of employer-provided group-insurance programs. That situation is not only perverse, it is at odds with settled federal law.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

It is on that last point that the Affordable Care Act offends most egregiously. While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it. Even if we accept for the sake of argument the belief that subsidized contraception comes under la raison d’État, there are ways of achieving it without burdening religious belief in the way the ACA mandate does: The government could simply offer vouchers to anybody who wants one. Even better, it could have reformed health care in such a way that Americans could shop for insurance as individuals rather than as herds, but the herding instinct is strong in the Democrats.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

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