Bench Memos

Law & the Courts

Linda Greenhouse vs. Little Sisters of the Poor

In an essay on the challenges that the Little Sisters of the Poor and other religious nonprofits have brought against the HHS contraceptive mandate “accommodation,” Linda Greenhouse argues that “to accept the claims being made [by the challengers] is to plunge into a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents.” But it is Greenhouse’s own argument that is, in fundamental ways, untethered from reality. Consider:

1. Greenhouse contends that the Supreme Court majority in the Hobby Lobby case “held up” the HHS mandate accommodation “as a model for how to accommodate the competing concerns of church and state.” She claims that the Court “told the Obama administration to make the same accommodation available to for-profit corporations like Hobby Lobby.”

No. As I highlighted when the Hobby Lobby ruling was issued, Justice Alito made explicit in his majority opinion that the only role that the accommodation played in his analysis was to establish that the HHS mandate without the accommodation was not the least restrictive means of serving the asserted governmental interest (one part of the test under the Federal Religious Freedom Restoration Act). That the accommodation is a less restrictive means than the straight-out HHS mandate (and thus defeated the government’s defense in Hobby Lobby) does not at all suggest that the accommodation is itself the least restrictive means. Indeed, Alito observed that the government had failed to show that direct governmental provision of the objected-to drugs and devices “is not a viable alternative.”

Further, a mere three days after issuing its ruling in Hobby Lobby, the Court granted Wheaton College an injunction against the accommodation. So much for holding it up as a “model.”

2. Greenhouse contends that the challengers who object to some contraceptives on the ground that they might sometimes operate as abortifacients hold a “belief [that] doesn’t happen to be scientifically correct.”

For starters, it’s worth emphasizing that many of the religious nonprofits challenging the accommodation object to providing all contraceptives, not just those that do or might sometimes operate as abortifacients. Greenhouse’s claim about what is “scientifically correct” has no bearing on their objections.

Further, Greenhouse’s claim is wrong. As I spelled out nearly two years ago in response to a similar assertion by Greenhouse, the Obama administration itself, in its certiorari petition in Hobby Lobby, approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” The physicians’ amicus brief that Greenhouse invoked back then also established that the Hobby Lobby plaintiffs were right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). That brief also revealed, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justified the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of those drugs.

Greenhouse again asserts that the two emergency contraceptives, Plan B and ella, “actually work [only] by preventing ovulation.” But she provides no reason to believe that the science that she falsely claimed was definitively settled two years ago now is definitively settled. (The FDA Guide is unchanged.) Further, Greenhouse contradicts her own claim that the challengers’ belief about copper IUDs isn’t “scientifically correct,” as she concedes that the copper IUD “[o]ccasionally … may work by keeping a fertilized egg from implanting in the uterine lining.”

3. Greenhouse complains that the Hobby Lobby majority’s position implies that a substantial burden on a person’s exercise of religion is “anything that a religious plaintiff says it is.” Greenhouse is correct to recognize that the several courts of appeals that have held that the accommodation does not impose a substantial burden have failed to follow Hobby Lobby. But she mistakes what Hobby Lobby actually says.

What Hobby Lobby actually stands for on this point are two elementary propositions: first, that a person is entitled to form his own religious beliefs (including his beliefs as to improper moral complicity); and, second, that a massive fine for declining to engage in conduct that seriously violates a person’s sincerely held religious beliefs imposes a substantial burden on that person within the meaning of the Religious Freedom Restoration Act. There is nothing novel about these propositions, and there should be nothing controversial about them.

4. Greenhouse charges that the “Roberts Court [has] worked assiduously over the last 10 years to elevate the First Amendment’s Free Exercise Clause at the expense of its First Amendment twin, the Establishment Clause.” Hobby Lobby, of course, was decided on the basis of the Religious Freedom Restoration Act, not the Free Exercise Clause, and the accommodation will likewise be judged against RFRA. The major Free Exercise Clause of the last 10 years was the Court’s unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, in which the Court rejected the “amazing” (as Justice Kagan put it at oral argument) contention of the Obama administration that religious organizations are limited to the right to freedom of association that labor unions and social clubs enjoy. Are the liberal justices part of the nefarious conspiracy that Greenhouse detects?

5. Greenhouse fears that a victory by the challengers will “impair the rights of non-adherents to the benefits designed by a secular government to apply to all.” But that fear is baseless. What RFRA requires is that the government show that its burdening of religious freedom is the least restrictive means of furthering a compelling governmental interest. Where, as here, there are ways to provide the “benefits” that are less restrictive of religious freedom, RFRA forbids the government from coercing objecting religious believers to be morally complicit in its provision of those benefits.

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