Bench Memos

Law & the Courts

Respecting Freedom of Conscience, a Disappearing American Value

The Supreme Court building in Washington, D.C. (Yuri Gripas/Reuters)

In a startling series of edicts, government bureaucrats have announced that Guns Down America must provide all its staff members with firearms containing high-capacity magazines, the American Atheists must give a free Koran or Bible to each of its workers, and orders of Catholic nuns and the sponsors of the annual March for Life must offer their employees free access to abortion. All three of these pronouncements are absurd; only the last is true. But that truth shows how far our country has fallen when it comes to protecting rights of conscience.

It used to be a widely held American value to respect conscience rights. Take abortion. Moral or religious objections to abortion have existed for millennia, and our country has traditionally respected them. Indeed, the very same day the U.S. Supreme Court announced its decision in Roe v. Wade, it issued another opinion in Doe v. Bolton that praised the state of Georgia for enacting laws ensuring that hospitals and employees with “moral or religious” objections did not have to facilitate or carry out abortions.

The federal government followed suit, immediately enacting the Church Amendments — by a 92–1 vote in the U.S. Senate — to protect those who object to performing or assisting in abortions or sterilization procedures. A short while later, Congress adopted the Hyde Amendment, prohibiting the federal government from using taxes to pay for abortion under almost all circumstances.

It was an earth-shattering change when, in 2011, the U.S. Department of Health and Human Services issued guidelines interpreting the Affordable Care Act to force many employers to cover all FDA-approved contraceptives in private health plans, including abortifacients that take a human life. Religiously minded businesses like Conestoga Wood Specialties and Hobby Lobby, and nonprofits with moral or religious objections to abortion like March for Life and Little Sisters of the Poor, challenged those intrusive regulations all the way to the Supreme Court.

After years of litigation, HHS restored a semblance of sanity and issued final regulations that exempt private employers from offering contraception and abortion coverage based on moral or religious objections. Meanwhile, HHS ensured access to government-subsidized services to those who could not afford them.

That sensible compromise should have ended the debate. But states that favor government-subsidized abortion and oppose freedom of conscience could not let things rest and sued. They made two incredible arguments. First, the states claimed they had the right to sue because, if an employer would not cover abortion and the states chose to pay for it, the states would incur that cost — as though the federal government must force private employers to subsidize the states’ voluntary provision of abortion-causing drugs. Second, the states said that HHS had no authority to grant a religious and moral exemption — only authority to violate conscience rights.

The Supreme Court has now agreed to decide the exemption’s validity in a pair of cases involving the Little Sisters and the Trump administration. And now Alliance Defending Freedom has filed a petition for certiorari with the high Court on behalf of the March for Life Education and Defense Fund to add its voice to the debate.

March for Life is one of the oldest and best-known pro-life organizations in the country. To say it opposes abortion is an understatement: That opposition is the reason the organization exists. Although March for Life is non-religious, the organization enjoys the new HHS moral exemption. And that makes perfect sense, because the organization’s employees all oppose abortion, too.

ADF and March for Life are urging the Court not only to uphold the religious and moral exemption but to reaffirm the country’s commitment to honoring freedom of conscience. Such freedom benefits everyone, no matter their beliefs.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom. He served as Michigan’s solicitor general from 2011 to 2013.

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