In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith. For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to claims that a law infringed on practices of individual religions. In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life. (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.) In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.
On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine. Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities). This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.
There are three crucial issues for Wednesday’s arguments.
The first is a practical matter. The previous decision (Hobby Lobby) was a 5-4 decision with Justice Scalia in the majority. With that seat now vacant for the indefinite future, you have a 4-4 split.
The second is also a practical matter. While most of the federal circuits have ruled in favor of the federal government, one has ruled in favor of the challengers. As such, affirming the lower courts by a split decision is not an adequate solution. The Treasury needs one rule that applies across the country, not separate rules depending upon where the employer is located (particularly when dealing with an employer who may have offices in different circuits).
The third is actually applying the RFRA to this case. The basis of the claimed objection is the belief that some forms of contraceptives are abortifacients. This belief is scientifically dubious. To simplify the issue, there are three things that must happen before a woman becomes pregnant. First, she must release an ova (an event that normally occurs once every approximately twenty-eight days). Second, a sperm must reach the ova. Third, the fertilized ova must implant in the wall of the uterus — a prospect aided by the growth of the lining in the uterus over the twenty-eight days of the menstrual cycle. Contraceptives work by decreasing the likelihood of one of these three events. (Most birth control pills work on the first and third by releasing hormones that prevent the release of an ova or the growth of the lining). An abortion is the removal of an implanted zygote from the uterus. By labeling those contraceptives that reduce the likelihood of implantation as “abortifacients,” these religious groups are mixing biological apples and oranges.
Despite the bad biology of the opposition, previous RFRA cases have held that courts must accept the beliefs of the challengers as they are. As long as those beliefs are sincerely held, their unreasonableness is not a factor in the analysis.
The next step is whether providing female employees with access to contraceptives is a compelling government interest. In the last case, the Supreme Court declined to decide this issue. The fact that it left this issue open to question is one reason why having women on the bench in representative numbers is essential. Getting pregnant has significant impact on would-be mothers’ health. I have had too many friends and family who have had difficult pregnancies that put their health and life at risk. Access to contraception is an essential part of allowing women to make same decisions about their health that men get to make. Hopefully, regardless of the outcome of this case, this issue will be laid to rest/
Even if the government has a compelling interest, the next step is whether the current rules are narrowly tailored to get the result. Here, the problem is that, contrary to conservative spin, the government has actually been very accommodating to religious entities. By creating one set of rules for churches, mosques, and synogogues and a second set of rules for entities that are only affiliated with religious groups, the government sort of indicates that it can accomplish its purposes and still give further accommodations.
At some point, hopefully on Wednesday, the government needs to identify what it really needs from employers claiming the exemption to assure that the women working for such employers get contraceptive coverage. I do not think it is unreasonable for the government to require a simple form at some point in time (presumably before the start of the coverage period, and maybe before the time period during which employees choose their coverage) in which the employer identifies how they will be complying with the general mandate (including the name of the insurance provided if they are not self-insuring), the relevant plan documents, and whether the employer is claiming a religious exemption from any part (including contraceptive coverage) of the mandate. The government’s problem is the separation of these issues that should be addressed in one document.
Having made the mistake of allowing a separate filing to claim the exemption, the government has set itself up for a never-ending objection to providing any information on the theory that such actions make the employer complicit in the government’s action of providing contraceptive coverage to the employees of these employers. It would be nice if the Supreme Court would hold that, after a certain point, the government has made all reasonable accommodations that are required to protect religious freedom, and that employers are not able to interfere with the rights of their employees by choosing to characterize the employer’s claiming of the exemption as aiding the sinful conduct of their employees.
With a likely 4-4 split, the obvious compromise would be for the court to issue an opinion requiring a minor adjustment to the current rules but hold that the minor adjustment is all that is needed to narrowly tailor the regulations. In the absence of such a compromise, this case is likely headed for a fall 2017 re-argument.