“What this law basically says is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.” — President Bill Clinton, at his signing ceremony for the Religious Freedom Restoration Act, Nov. 17, 1993
Since March 2010, as the Obama administration turned the Affordable Care Act into federal regulations, few provisions grew as controversial as the mandate that most employers provide insurance coverage for contraceptives.
The most disputed implication of that mandate, and the one at issue in a major Supreme Court ruling Monday, demanded coverage of contraceptives some employers view as tantamount to abortion because those methods can stop fertilized embryos from implanting in the womb.
For many Americans, this so-called Hobby Lobby case (the plaintiffs include that retail chain) is about whether employees have a right under the health care overhaul to employer-provided contraception. Other Americans see the case as a test of whether the government can require companies to be indirectly complicit in abortions. For still others it’s about attacking or defending the Affordable Care Act, aka Obamacare.
Five U.S. Supreme Court justices chose a different battleground.
In the first sentence of a 49-page opinion, they framed the case as asking whether the 1993 Religious Freedom Restoration Act lets the government demand that closely held corporations “provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.”
In the very next sentence, the justices ruled that the RFRA’s protections of religious exercise outlaw the Obamacare regs that require such employers to provide the coverage.
Four footnotes to history make this case easier to comprehend:
(1) Congress had overwhelmingly passed RFRA. The House did so by voice vote with no objection; the Senate vote was 97-3.
(2) Hobby Lobby didn’t object to covering all contraceptive methods — only those its owners believe would make them complicit in abortions.
(3) The government accepted the sincerity of the company owners’ beliefs.
(4) Hobby Lobby faced fines of $1.3 million a day if it didn’t offer the coverage the feds mandated, or separate fines of $26 million a year if it stopped offering health insurance.
In short, then, this case is about government reach and religious convictions — and circumstances when the latter should trump the former: “We doubt that the Congress that enacted RFRA — or, for that matter, ACA — would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans,” Justice Samuel Alito wrote.
The court majority essentially cited the Obama administration for a failure of imagination: The feds could have found ways of achieving contraception coverage without forcing religious objectors to be middlemen.
One obvious example Congress surely will consider now is government-provided contraception.
This ruling doesn’t undermine Obamacare — the law or the coverage scheme.
It does, though, eliminate one of Obamacare’s signature and most symbolic mandates. It gives opponents of Obamacare new routes to attack how the administration is enacting the statute.
And it adds to our body of law a notion the court never before had addressed: Yes, closely held secular corporations and their owners do enjoy federal protections in how they exercise beliefs.
Big corporations also are persons under RFRA, but the court didn’t address whether they, too, can have religious beliefs. This will provoke huge disagreement. It also risks being misunderstood.
UCLA law professor and law blogger Eugene Volokh, a First Amendment scholar, crisply synthesized the court’s point:
To be sure, a corporation is a legal fiction; it cannot itself practice religion, or for that matter do anything else. It acts only through people. But — precisely because a corporation is just a legal fiction — when a law requires such a corporation to do something that its owners believe to be religiously forbidden, it burdens the religious freedom of those real owners, and not just of the fictional corporation itself. (The court says) “protecting the free-exercise rights of corporations like Hobby Lobby … protects the religious liberty of the humans who own and control those companies.”
This protection for exercise of religious belief is fundamental to our society and government — and the court again has ruled that it’s pre-eminent even in cases where invoking it appears to limit other rights established by law.
How can that be?
Because, the court ruled, the company owners “sincerely believe that providing the insurance coverage demanded by the (federal) regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”
The First Amendment of our Constitution broadly guarantees religious freedoms; RFRA codified more specific protections. When a person’s strong religious convictions put him or her at odds with a government mandate, American practice is to defer to those convictions.
As a nation, we accept that such accommodations can create costs for the rest of us — but we also accept those costs.
The ruling is narrowly tailored and, with its numerous qualifiers, doesn’t appear to create the slippery slope threats that the court’s dissenters imagine.
Congress and the Obama administration can find ways to provide contraception without involving employers.
For lack of that smarter move from the get-go, Obamacare has suffered another wound. We hope a pile of future memoirs explain why the White House didn’t find a less intrusive way of delivering the coverage.
This decision angers many Americans. But it’s a logical extension of the Constitution’s intent to make ours a free and pluralistic society.