RELIGION IN THE NEWS Spring 2003

How the world has changed! Forty-seven years ago, the U.S. Supreme Court was asked to decide whether the State of Connecticut could prohibit pharmacists from selling contraceptives to married couples. In a less than well-reasoned opinion—but one that is socially beyond challenge—the Court held in Griswold v. Connecticut that the state could not without invading citizens’ privacy rights.

In relatively short order, the Court also held that states could not bar singles or minors from purchasing contraceptives, nor ban ads for them.

Today, courts and legislatures are deciding whether government may compel those who on religious grounds object to providing contraceptives to others to do so.

There are three categories of cases:^{^[1]}

(1) pharmacists objecting to state regulations barring those who object to dispensing contraceptives on religious grounds from referring customers to other pharmacists;

(2) under the Affordable Care Act (“ACA”) whether (and which) religious institutions should be required to cover contraception in employer-funded drug plans; and

(3) whether private for-profit employers with religious objections to contraception should be required to provide it.

The latter two questions are triggered by the legislative mandate that health insurance provide contraception coverage, as the federal government and many states have done. The first question arises from state power to regulate the practice of pharmacy.

Similar issues could arise with regard to abortion or assisted suicide in states that permit it, but federal and state legislation offer broad “conscience clause” protection in both cases. Congress and legislatures have not, however, legislated specific religious liberty protection with respect to clashes between conscience and access to contraception.

In order to understand the legal issues involved, it is necessary to know something about the general state of the law concerning the free exercise of religion (“conscience”) and the right of access to contraception.

Turning to the latter first, the federal constitutional right to contraception, the so-called “right to privacy,” is not an affirmative right of access to contraceptive products or services. It is a negative right against government interference with a person’s decision to obtain them.

However, Congress, state legislatures, and administrative bodies using their general legislative or regulatory powers may require health insurers or employers to provide such coverage. They may likewise (but probably need not) include coverage in government-funded plans.

Although the Supreme Court once interpreted the Free Exercise Clause of the First Amendment to require the government to offer compelling reasons for any substantial burden on religious practice (Sherbert v. Verner, 1963), the Court has retreated from that position—which, it says, would allow religious people to exempt themselves at will from most laws.

Beginning with Employment Division v. Smith (1990), the Court now says that a law which is religiously neutral, generally applicable, and not subject to individualized exceptions (e.g., a “good cause” shown exemption) cannot be challenged on Free Exercise grounds. On the other hand, a law that said killing animals is permissible except for purposes of religious sacrifice is unconstitutional. (Church of the Lukumi Babalu Aye v. City of Hialeah, [1992])

Under this interpretation, a general mandate (“all employers must provide contraceptive coverage”) would not violate the Free Exercise guarantee even if applied to completely religious institutions such as houses of worship or religious seminaries.

Congress did not accept the Court’s dilution of Free Exercise protection. In 1993, it adopted the Religious Freedom Restoration Act (1993) (“RFRA”), which for purposes of federal laws and administrative activities reinstates the older compelling interest standard whenever federal law action substantially burdens religious belief or practice.

RFRA applies to neutral, generally applicable federal law. Congress has occasionally exempted certain rules from RFRA, notably bans on female genital mutilation. It has not made an exception for contraceptive services.

At the heart of the new health care law is the requirement that employers provide employees with affordable health insurance covering core services as determined by the government. The Obama Administration included contraceptive coverage among the core services, excepting only houses of worship—technically, tax-exempt institutions devoted to spreading the faith, and which employ and primarily serve people of the faith. (One could imagine a church or seminary that did not meet these criteria, but the assumption has been that all churches will be exempt.)

The administration specifically declined to exclude religious social welfare institutions such as hospitals from the scope of the requirement. Most do not primarily serve members of the faith and are not staffed by members of the faith.

The Obama Administration did not invent the distinction between the house of worship and other religious institutions. It was copied from legislation requiring California and New York employers to provide contraceptive coverage. The highest courts of each state upheld that legislation against various constitutional challenges.

Reaction to the administration’s mandate was predictably mixed.

Advocates for women’s reproductive choice and liberal Catholics, already sharply critical of the church’s position on birth control, welcomed the decision, emphasizing that religious institutions should not be free to impose their religious views on others.^{^[2]} (Some of the rhetoric made it sound as if religious institutions were firing people who used birth control, which, of course, is not the case.) The institutional Catholic church as well as some evangelical Protestants insisted that the administration was undermining religious liberty by compelling them to act in violation of their religious tenets.

In response, the administration proposed a further compromise, excusing religiously affiliated institutions from “paying” for such insurance coverage on the ground that insurance companies saved sufficient money from prevented pregnancies that they could “afford” to provide coverage at their “own” expense.

This proposal did not satisfy the Catholic bishops (though it was endorsed by various orders of nuns). The bishops proceeded to launch a major campaign to “defend” religious liberty.

The Obama compromise also left unanswered questions about self-insuring religious social welfare institutions and whether the compromise made financial sense. The Administration called for a further round of comments and delayed enforcement of the rule with respect to religious institutions until August 2013.

Commercial enterprises enjoy no such harbor. Congress quickly considered, but failed to pass, legislation that would have exempted all religious objectors, including corporate ones.

Both classes of objectors—religious institutions and commercial enterprises—have filed numerous challenges to the contraceptive mandate. The religious institutions raise a variety of Free Exercise Clause and RFRA claims. For RFRA claims, all that need be alleged is a substantial burden on religious practice. Those claims are straightforward.

Constitutional claims are more complicated. They are basically of two kinds: that the government cannot constitutionally distinguish between different aspects of a religion’s sacred work; and that the healthcare law is not a neutral law of general applicability.

The latter argument is variously cast. In some cases, plaintiffs argue that since the government can and has granted waivers from the core package of covered services (say, because a particular coverage was too expensive for a particular low-wage workplace), it cannot treat religious objections less favorably than financial ones. In other cases, plaintiffs argue that since existing plans (so-called “grandfathered plans”) need not provide contraceptive coverage, the law is not generally applicable.

These claims can be met with a variety of answers either addressing the claim of non-neutrality or asserting a compelling interest:

1. Since the goal of the act is to provide affordable health care, the waivers are not exceptions to the general rule, but the general rule itself, inasmuch as the act requires only affordable health care;

2. The grandfathering exception is not an exception but a reasonable transformational feature of a massive reform;

3. The constitutionally protected status of access to contraception makes availability of it to employees a compelling interest;

4. Without availability of contraception and the ability to control when they become pregnant, female employees cannot achieve real equality in the economy. (Indeed, one response to recent Missouri legislation allowing any employer with religious objections to contraception coverage not to pay for it is a lawsuit challenging the law as illicit sex discrimination); and

5. Protecting the religious rights of religious employers imposes faith on unwilling employees.

As for for-profit secular employers, it is open to debate whether they can claim either statutory or constitutional protection for religious liberty. This claim would have greater resonance if corporations did not have a constitutional right to influence (buy?) elections. Courts have noted the difficulty of the question but have done their best to avoid answering it.

Several courts so far have declined the invitation to enter this thicket regarding not-for-profit religious groups on the ground that the suits are not ripe for decision. The administration is, after all, reconsidering its policy; no regulation is in place; no one knows what the final policy will look like; and the administration has declared that it will not enforce the rules against religiously affiliated institutions, at least until summer 2013.

In these circumstances, courts have held—no doubt correctly—that the cases are not ripe for decision, though one such case is currently on appeal.

No such barriers exist for lawsuits brought by private companies—usually small ones, with ownership held by a small number of family members. These suits, brought under both RFRA and the First Amendment, are certainly ripe, as the Act imposes—or shortly will—present duties on such employers.

Two federal district courts have issued temporary injunctions against enforcement of the contraceptive mandate, in each case emphasizing the difficulty of the question. A different district court dismissed the complaint on the merits, finding that the small additional cost imposed no burden on religious practice sufficient to meet the RFRA “substantial burden” test, and that, as regards the Constitution, the requirement was a neutral law of general applicability.

In that latter case, the court reasoned that the employer himself was not being required to use contraception. The “sin,” if any, was committed by the employee, and that only if the employee chose to use contraception. Subsidizing that possibility, the court thought, was too far removed from the sin to be a substantial burden—a holding which, if affirmed, would also prevent not-for-profit groups from invoking RFRA against the mandate.

This is not plainly true as a matter of theology. It may be right as a matter of law by analogy to the well-settled rule that taxpayers cannot object to the uses to which tax funds are applied.

It’s hard to predict the outcome of all this litigation. It will take years for all the cases to be decided, and, of course, different cases may be decided differently.

But it is already possible to see that the clash over contraception presents in sharp focus clashes between two conflicting world views: of individual autonomy, private decision-making, and gender equality against the claims of religious institutions and of sexuality as a matter of public moral concern.

Some see battles between good and evil. It is more accurate to see an agonizingly painful clash of values widely held in American society.

Some years ago, there was much debate over whether pharmacists should be permitted to refrain from filling prescriptions for contraceptives and especially for so-called Plan B, which prevents implantation of a fertilized egg and which some therefore consider a form of abortion.

In one extreme case, a pharmacist ripped up a prescription, but most of the debate was about the practice of referring patients to another pharmacist. Some states explicitly sanctioned the practice, but several others—Washington and Illinois among them—banned it by rule.

The lower courts have so far enjoined both rules, on the ground that they were not religiously neutral. In particular, a Washington federal district court found that state law allowing pharmacists to not satisfy a prescription for numerous reasons (little demand; drug did not fit the pharmacy’s marketing niche, etc.) other than religion was a classic case of a non-neutral rule that needed to be justified by a compelling interest. This court found the arrangement failed the test, since as a practical matter all or near all prescriptions would nevertheless be promptly filled.

Those opposing exemption describe the relevant rule differently, as one requiring pharmacies to carry a representative sample of drugs and then dispense what they carry to anyone presenting a valid prescription. Even if the rule is non-neutral, it is justified by the state’s interest in seeing to it that women have ready access to contraceptives.

Appellant’s briefing in the Washington state case is being completed as this is written. A decision will come sometime in the next 18 months. Meanwhile, the trial in the court of public opinion will continue.

¹The Becket Fund has a website devoted to the litigation, www.becketfund.org/hhsinformationcentral/.

²Proponents of aid to parochial schools make the same argument that proponents of contraceptive coverage make—that if one is denied access to funding, one cannot meaningfully exercise a right. Opponents of each position distinguish between the right and a duty to subsidize.

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