By Irene Morse
Oct. 6, 2014
From the beginning, the pro-life religious right has been fighting Obamacare’s mandate that insurance providers cover contraception. And unfortunately for women’s health outcomes, the Obama administration has been caving to the pressure and is gradually dialing back every provision it initially advocated to ensure women had access to contraception. And when the administration doesn’t cave, the Courts find a way. What most don’t realize is that the decisions made now will have wide-reaching implications for a long time to come.
From the beginning of this political battle, the administration agreed to modify the law so that religious non-profit organizations (such as churches or charities) could seek an exemption, allowing them to avoid paying for birth control directly as long as they notified the federal government or their health insurance provider, so that the government could arrange to foot the bill independently. But this was not enough for many religious business owners, and (perhaps empowered by recent decisions such as Citizens United) several corporations, including Hobby Lobby, went to court to argue that they too should be able to seek an exemption. When the Supreme Court decided Burwell v. Hobby Lobby in favor of its Christian owners, they allowed corporations to assert religious affiliation and receive the same exemptions that churches did.
But none of this seems to be sufficient for those who oppose Obamacare. Not content with exemptions for nonprofits AND for corporations, the Becket Fund for Religious Liberty (who also represented Hobby Lobby in their successful case) has now filed a case on behalf of Ave Maria University, arguing that the organizations and corporations that choose not to fund contraception for their employees shouldn’t even have to notify the federal government. This would essentially leave the women who work for these companies with no coverage for contraception, as the government wouldn’t even be able to fund coverage for them independently.
All of this points to a larger trend — the gradual erosion of any meaningful legal standard that allows courts to balance religious and state interests. Under the Religious Freedom Restoration Act of 1993, a religious exemption from federal law can be created only if the laws “substantially burden a person’s exercise of religion.” The question after Hobby Lobby is what exactly qualifies as a “substantial” burden.
Ave Maria University and the Becket Fund are arguing that simply filling out a government form is a substantial burden to their exercise of religion. The issue has been pushed even further in a recent district court case in Utah, Perez v. Paragon Contractors. Vernon Steed, a leader in an obscure, polygamous sect that broke away from the mainstream Mormon religion, refused to testify in a federal child labor investigation of his group, using his religious beliefs as an excuse. District Judge David Sam ruled in favor of the man and cited the Hobby Lobby decision in support of his ruling.
The case may seem insignificant, but it too casts doubt on the meaning of the word “substantial” in balancing religious interests. Some even argue that Judge Sam’s application of the Hobbly Lobby decision would essentially negate the “substantial” requirement entirely. If filling out a form and testifying in a child labor case are substantial violations of the free exercise of religion, it seems that pretty much every federal law might be.
As these cases continue to crop up and continue to be surprisingly successful, it’s easy to forget just how extraordinary they are. The issue here is not abortion, although let’s not forget that even access to abortion is a woman’s right under Roe v. Wade. The issue is birth control, something which the Supreme Court decided was innocuous almost 50 years ago in Griswold v. Connecticut. It is becoming increasingly clear that the religious right is thinking long-term and wants an effective reversal of Griswold through these expansive religious exemptions.
Such a backward understanding of sexual decisions and rights should be shocking to everyone. And even if some Americans are opposed to all contraception and believe that sex should be all about baby-making all of the time, let’s not forget that many women require birth control for medical reasons that are completely unrelated to their desire to have a child or make responsible sexual choices. To restrict access is to severely damage many women’s health.
Further, women’s health aside, there are several religious groups that object to general medical procedures. Jehovah’s Witness object to blood transfusions, Scientologists object to antidepressants, and Christian Scientists object to vaccinations, as do over 3 percent of California helicopter moms. To allow these groups to exempt themselves from providing coverage for such basic and essential medical services would be disastrous for the overall health of the country.
The expansive religious exemptions precipitated by the Hobby Lobby decision would likely also be used in other areas of the law. LGBT activities have long been fighting for a new version of the federal Employment Non-Discrimination Act (ENDA) that includes sexual orientation and gender identity as protected classes. Corporations with religious owners who oppose equal treatment of the LGBT community could easily find legal precedent to openly discriminate under a religious exemption to ENDA.
Most mainstream religious groups in America are content to abide by federal law. But a powerful group of activists in the religious right are hellbent on taking America back in time by limiting women’s access to contraception. And there will always be fringe religious groups who are eager to use the victories of cases like Burwell v. Hobby Lobby to justify their extreme and illegal practices. Let’s hope the federal government catches on and stops making concessions before it’s too late.