By BJC General Counsel K. Hollyn Hollman
The Obama administration’s contraceptive mandate — the requirement, under the Affordable Care Act, that most employer-provided health insurance plans cover all FDA-approved methods of contraception — continues to stir controversy and spawn new lawsuits at a dizzying rate. It is not only the number of cases that is striking. The variety of arguments and contexts in which they are made create a very complex picture for determining whether the mandate violates religious liberty law. While it will take a long time to decide all the related claims, the U.S. Supreme Court has decided to hear two cases that involve one of the most significant and high-profile issues at stake. The two cases, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, address whether the contraceptive mandate violates the religious rights of secular corporations and their owners. The corporations employ people without regard to religion and sell non-religious goods, but their individual owners strongly object to some forms of contraception and maintain that both they and the corporations themselves have free exercise rights that will be violated by the mandate. The cases have been consolidated, and oral arguments will be held on March 25.
Resolution of these claims will turn on interpretation of the federal Religious Freedom Restoration Act (RFRA), which the Court is being asked to apply in this complicated and unprecedented context. The BJC led a broad coalition that pushed for RFRA’s passage after a 1990 Supreme Court decision left free exercise rights more vulnerable to government intrusion. Twenty years after its enactment in 1993, opinions vary about RFRA, with some prior advocates expressing concern about its interaction with civil rights and health care laws. The BJC continues to support the strong standard RFRA embodies.
At a recent conference marking RFRA’s 20th anniversary, panelists acknowledged that at the time of RFRA’s passage, this precise application of RFRA — to claims by large-scale, for-profit employers challenging administrative requirements stemming from comprehensive health care reform — could not have been predicted. RFRA advocates did, however, intend to furnish a broad standard for protecting religious liberty, and it is unsurprising that litigants would use the statute in novel ways as new conflicts arise between religious beliefs and competing governmental interests. RFRA’s legal standard does not dictate specific outcomes; instead, it balances interests and seeks a workable solution that preserves religious liberty values without transforming them into an automatic trump card. When claimants can show sincere religious beliefs are substantially burdened by the government’s actions, the government must show that the burden is necessary, as applied to the specific religious claimant, to achieve an important government interest.
As in other religious liberty cases to reach the Supreme Court, the BJC has an opportunity to weigh in on this case. For us, however, the particular religious claim is less important than the need to advocate for strong standards that protect religious liberty for all. It matters much less which religious group or governmental entity we are aligned with in a case (indeed our history shows cooperation with groups across the theological and political spectrums) than that strong legal principles are maintained that protect us all.
RFRA allows religious claimants and the federal government to have their day in court. Here, the corporations’ owners have religious objections to some contraception and oppose facilitating its use in any way. For them, the mandate is a fundamental matter of religious liberty. Their claims should be taken seriously and the statute applied according to its terms. The government likewise advances legitimate interests in promoting comprehensive health care and gender equality in the workplace within the framework of an employer-based system of health insurance coverage. Vigorous defense of its policy under RFRA is to be expected.
The outcome of these cases will depend on the Court’s interpretation of RFRA’s operative language: is a secular, profit-seeking corporation a “person” that can “exercise religion” under the statute? If so, does the contraceptive mandate constitute a “substantial burden” on such entities’ religious exercise? And can the government demonstrate a sufficiently “compelling interest” for imposing the mandate on these particular claimants?
These substantive questions will be thoroughly briefed by the parties and their amici. For the BJC, the fact that these questions will determine the outcome is more important than whether any particular religious claim succeeds.
Further reading on the contraceptive mandate from the BJC:
“RFRA’s constitutionality called into question” by Executive Director Brent Walker, from the February 2014 edition of Report from the Capital
“Contraceptive mandate oral arguments shed light on underreported issues” by General Counsel Holly Hollman, from the April 2014 edition of Report from the Capital.
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