Magazine | December 31, 2013, Issue

Is the Contraception Mandate Legal?

To answer, consult the Religious Freedom Restoration Act

People forget it now, but the Religious Freedom Restoration Act — the law that companies are using to fight the Obama administration’s requirement that almost all employers cover contraception, sterilization, and drugs that may cause abortion in their insurance plans — was controversial among conservatives in its first years. The old debate over it should remind us of two truths that, while compatible, are in tension with each other: The principle for which conservatives are fighting in today’s cases is important, and it is not absolute.

The story starts in the 1980s, when two drug counselors in Oregon were fired from their jobs for the sacramental use of peyote. The state denied their applications for unemployment benefits on the ground that they had been fired for misconduct, and they sued on the theory that what the state called misconduct was actually the constitutionally protected exercise of religion. Some Warren Court decisions gave the men hope of winning.

They lost. The Supreme Court, in a 1990 opinion written by Justice Antonin Scalia, ruled that religious belief cannot create a constitutional entitlement to an exemption from a generally applicable law that was not designed to limit religious freedom. Holding otherwise “would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.”

The decision came in for substantial criticism. The liberal legal academy was mostly hostile. So was the conservative movement. The late Father Richard John Neuhaus wrote in these pages that the “fear of anarchy . . . is the conventional argument against all freedoms.” Other conservatives argued that the decision was right, and that we should stick with the traditional, pre–Warren Court practice of letting legislatures grant accommodations in particular cases, known as “conduct exemptions,” rather than having judges try to devise a rule and apply it across the board. (The Volstead Act implementing Prohibition, for example, exempted the religious use of alcohol, as in Catholic communion.)

The opponents won the political argument. Three years after the Court’s decision, a bipartisan majority of Congress enacted, and President Clinton signed, a law to undo it — a law titled to suggest, hyperbolically, that the Court had delivered a grave blow to religious freedom.

The Supreme Court did not overrule the Oregon decision: Justice Scalia’s ruling on the meaning of the First Amendment stood. But it accepted the new law as a statutory, rather than constitutional, protection for religious dissenters. If a generally applicable federal law — such as the prohibition on peyote use in the Oregon case — imposed a “substantial burden” on someone’s exercise of religion, judges would have to determine whether applying the law to that person served a “compelling governmental interest” using the “least restrictive means” possible. If the answer was no, the believer would get an exemption. Whether or not the law was right to make this inquiry the job of the courts, it seems hard to dispute that it is the right inquiry.

The current dispute arises from the Affordable Care Act, popularly known as Obamacare. It authorizes the secretary of health and human services to set a list of preventive health services that employers have to cover. The administration determined that contraceptives should be on that list. (Which appears to make pregnancy akin to a disease, but let’s skip over that.) Some employers object to those forms of contraception that may in some cases cause abortion. Some follow Catholic teaching in objecting to contraception in general, and even more to abortifacients. Both groups further believe that it would be sinful to facilitate the behavior they deem immoral, or to create the impression that their opposition to it is weak or nonexistent.

Some opponents of the administration’s rule have said that the First Amendment requires that religious objectors receive an exemption. If Justice Scalia’s Oregon decision was right, though, that’s a hard case to make. The liberal Washington Post columnist Harold Meyerson has raised the possibility that Scalia might vote in favor of the religious dissenters anyway, because “he’s being confronted with a case where the religious beliefs in question may be closer to his own” than the beliefs of the Oregonians. More likely, though, is that Scalia will decide the case under the Religious Freedom Restoration Act, which of course did not exist at the time of the Oregon decision, rather than under the First Amendment. (Meyerson shows no evidence in the column that he knows this law exists.)

#page#Applying the law requires, first, determining whether it covers corporate “persons”: Can people organized in the corporate form be said to face a “substantial burden” to their religious consciences? The Dictionary Act stipulates that laws that refer to persons should be understood to include corporations unless otherwise specified, and the Religious Freedom Restoration Act contains no such exclusion. Reading the act to exclude corporations would have perverse results, as conservative legal writer Ed Whelan notes: It would mean that a kosher deli, if it were incorporated, would have no claim against a law that forced it to serve pork.

The rest of the analysis should be pretty straightforward. The administration’s rule requires the objectors to do something they believe their religiously informed consciences forbid, or else pay a steep fine for each employee they do not cover. That’s a substantial burden. The only way to conclude otherwise is to reject the employers’ religious views, which are not on trial before the courts.

It cannot be seriously maintained that forcing employers who object to contraception to provide it is the least restrictive means of advancing a compelling governmental interest. The government could, for example, increase its direct subsidies for the distribution of contraception, involving objectors only to the extent that they pay taxes to the general federal pot. Or the government could allow oral contraception to be purchased over the counter, without a prescription, involving objectors not at all.

Supporters of the administration’s legal position in the press have largely avoided engaging these points (except for corporate personhood, which they gleefully attack without noticing that in many cases it is what allows the law to hold corporations accountable for misconduct). Instead, they have created rhetorical diversions.

The editors of the New York Times say that the dissenting businesses have asserted “an unprecedented right to impose” their views “on workers who do not share them.” That framing of the issue may be effective, as undecided voters often instinctively side against whoever seems to be the aggressor in a culture-war debate.

But of course the employers are not going to court to stop employees from using contraception (or even resorting to abortion) should they wish to do so; they are merely trying to keep themselves from any complicity in it. A right not to be coerced into such complicity had never previously been asserted in court only because it had been taken for granted through the first two centuries of our country’s existence.

Feminist writers have tried a variant of the same claim, saying that the dissenting employers are placing their right to act on their religious beliefs above the rights of their female employees. To the extent these feminists are making a legal claim, it is vacuous: Yes, the employers are asserting that their right to act on their beliefs, protected by statute, trumps the right to employer-provided contraceptive coverage created by the regulation. So much is obvious.

If it’s a moral claim, it’s false. Let’s assume that the employers believe that governments should respect a right to contraception of the sort the Supreme Court has protected: a right to produce, purchase, and use contraception free of governmental interference. That right does not conflict with their own right not to provide such coverage. It conflicts only with a right to employer-provided contraceptive coverage. The employer litigants do not believe that this right of employees should be set aside because of their religious scruples; they don’t believe this right exists in the first place.

Defenders of the law who avoid such flimsy arguments usually end up making some sort of slippery-slope case: Let employers with religious objections opt out of the contraceptive mandate, for example, and pretty soon you’ll be letting other employers opt out of covering blood transfusions, or medical coverage altogether. Or letting Quakers get out of paying taxes to support the military. If religions that believe in human sacrifice make a comeback, should they get an exemption from murder laws?

The more outlandish scenarios ignore the terms of the Religious Freedom Restoration Act and thus state the principle behind the lawsuits too broadly. The principle isn’t “Never impose a burden on the practice of faith.” It’s “Don’t impose a substantial burden on the practice of faith unless you have to, that is, unless it’s the least restrictive way to advance a compelling governmental interest.” No neo-Aztecs can take shelter against the murder laws under that principle.

Maybe the anti-medicine employers could — but would anyone step forward to make the case? For almost all of American history, employers were perfectly free to deny all kinds of coverage for religious or any other reasons, and yet religious conflict over health care in the workplace has been nearly absent from American life. Nobody cites actual cases in which employees were denied coverage for transfusions because their bosses were Jehovah’s Witnesses.

So long as the principle behind the lawsuits is defined precisely, the arguments against it and them are very weak. Whether that will be enough for Justice Kennedy is anybody’s guess.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg View, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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