This past Friday, the U.S. Department of Health and Human Services (HHS) postponed for a year (until August 2013) the effective date for an interim final rule (IFR) that would require many religious employers to cover under their health insurance plans preventive pregnancy services, from contraceptives to sterilization and “morning-after” pills.
Some of the reactions to the Supreme Court’s recent decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania could lead unsuspecting observers to believe that the Trump administration has managed to bring America into the sort of dystopian world envisioned by Margaret Atwood’s The Handmaid’s Tale. But does the decision really “endanger [the] reproductive health of millions,” as the National Organization of Women claims? Such a conclusion ignores many facts, including the reality that the Trump administration built on protections enacted or supported by earlier Democratic administrations and that the rules in question may be altered by Congress or future presidents. Most importantly, no one is attempting to deny anyone access to birth control; the only issue is whether some employers must pay for or be complicit in providing contraceptive coverage when they have religious or moral objections to doing so.
Brief History of the Contraceptive Mandate
In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA). In the constitutional order envisioned by America’s founders, the law clearly exceeds Congress’s delegated powers. But that ship sailed in 1937. Even so, America’s founders would have expected Congress to specify what the law required. Alas, that ship has sailed as well.
Rather than delineating ACA’s requirements, Congress left many details up to administrative agencies. Congress did mandate that organizations with 50 or more employees provide women with “preventive care and screening” without “any cost sharing requirements,” but it charged the Health Resources and Services Administration and other agencies with the task of spelling out the details. Under Obama-era rules, employers were required to offer 20 contraceptive methods, including four that may cause abortions. Recognizing that some organizations had religious objections to providing such coverage, the Obama administration exempted religious houses of worship and denominations from these requirements.
Many religious organizations did not fall under this first exemption, including the Little Sisters of the Poor, an “international congregation of Roman Catholic women” that runs homes for the elderly. In response to complaints that such groups should be protected, Obama administration officials issued additional rules exempting them from the contraceptive mandate provided they self-certify that they meet certain criteria. The Little Sisters of the Poor challenged this certification requirement, arguing that it forced them to take “actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.” Doing so, they contended, would violate their sincerely held religious beliefs.
The Obama administration was willing to protect churches and religious organizations, but not businesses. It argued that such entities do not have the right to religious liberty. The United States Supreme Court rejected this position in Burwell v. Hobby Lobby Stores (2014). The majority held that the Religious Freedom Restoration Act of 1993, which was passed without objection in the House, 97-3 in the Senate, and was signed into law by President Bill Clinton, protected the owners of a closely held corporation from having to provide abortifacients to employees (the protestant owners of Hobby Lobby did not object to other forms of birth control).
Two years after this decision, the Supreme Court remanded the Little Sisters case to lower courts in the hopes that the parties could find a compromise. Litigants were unable to reach an agreement, so in 2017 the Trump administration resolved the conflict by issuing new rules exempting organizations that had religious or moral objections from the contraceptive mandate. The states of Pennsylvania and New Jersey objected that these rules violated both the ACA and the Administrative Procedure Act (APA), the federal statute that regulates administrative lawmaking.
Opinions of the Court
In Little Sisters of the Poor v. Pennsylvania, five justices, in an opinion authored by Justice Thomas, held that “the plain language of the statute [ACA] clearly allows the Departments to create the preventative care standards as well as the religious and moral exemptions.” As well, they found no reason to believe that the Trump administration violated the Administrative Procedure Act. Justices Kagan and Breyer concurred with the majority, although they suggested that lower courts might later find the rules to be “arbitrary and capricious” and thus violate the APA.
The majority’s decision is good news for organizations that have objections to providing, or being complicit in providing, certain forms of contraception to their employees. But celebrations may be short-lived as nothing prohibits Congress or, more likely, a future presidential administration, from revising these rules to require religious organizations to choose between their religious convictions and their ministries.
More encouraging for those who believe that religious liberty should be robustly protected is Justice Alito’s concurring opinion, which was joined by Justice Gorsuch. He relied heavily on the Religious Freedom Restoration Act, which stipulates that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person” is “in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.”
Justice Alito contended, accurately in my estimation, that the regulations in question created a substantial burden on the ability of Little Sisters to freely exercise their faith. It is also difficult to show that there is a “compelling interest” in requiring every employer to provide free contraceptive coverage, as both Congress and the Obama Administration exempted many businesses from this burden. And even if there was a compelling interest, there are far less restrictive ways of providing such coverage. In the final analysis, RFRA clearly requires “an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”
Justice Ginsburg, in a dissent joined by Sonia Sotomayor, complained that “[t]oday, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.” She emphasized that 70,000 to 126,000 women could lose administratively mandated contraception coverage as a result of the new rules (126,000 is a far cry from the “millions” that NOW thinks are in danger, but what are a few decimal points among friends?). Yet no one is forced to work for these organizations and, at worst, these women are returned to the situation they would have found themselves in 2009. This is nowhere near the Margaret Atwood-inspired headlines and coverage offered by NOW, Slate, NBC, and other organizations.
This decision points to a dysfunctional constitutional order. If Congress respected the founders’ Constitution, it wouldn’t pass legislation in this area. That Pennsylvania and New Jersey used valuable resources to challenge federal administrative rules rather than to provide free contraception directly to women whom they believe need it suggests that something is amiss with our current understanding of federalism.
It is perhaps too late in the day to complain about Congressional overreach or the rise of the administrative state. Fortunately, from the early colonies to the present day, many civic leaders have dedicated themselves to protecting the ability of Americans to act upon their religious convictions. When neutral laws of general applicability keep citizens or organizations from acting on their sincerely held religious convictions, these leaders have crafted exemptions or accommodations to allow them to freely exercise their faiths. With respect to the ACA, exemptions were created by the Obama administration, and they were expanded by the Trump administration. One may argue that the latter went too far, but it was hardly doing something unprecedented.
Third Party Harms?
It has become increasingly popular for progressive law professors and activists to complain that religious liberty protections are inappropriate and, perhaps, violate the Establishment Clause if they cause “third-party harms.” Justice Ginsburg picked up this torch in her dissent. But concerns about third-party harms are nothing new. For instance, religious pacifists have been granted exemptions from military service since colonial times, and surely increasing non-pacifists’ chances of being drafted constitutes a harm to non-pacifists who do not want to serve in the military. Yet over a hundred years ago, the Supreme Court held that such exemptions do not violate the Establishment Clause. Indeed, justices have rejected Establishment Clause challenges to every religious accommodation case to reach the Court, with one exception—Estate of Thornton v. Caldor (1984). It may come as no surprise that this is the only precedent Justice Ginsburg cited to support her position.
Consider as well the relative weight of “harms” in other areas of law, such as freedom of speech. The Supreme Court has said there is a constitutional right to burn the American flag as a form of political protest and has protected demonstrations by members of the Westboro Baptist Church at military funerals despite the great harm such acts cause to veterans and other citizens. We should grieve and object to such actions, but we would lose much if we sacrificed the freedom of speech to protect sensitive observers from these offensive acts.
Religious Liberty Should be Robustly Protected
Religious liberty is not a trump card that must win every time. Legislatures should ban religiously motivated actions when they have a compelling reason to do so. And they may mandate positive acts, such as requiring parents to provide medical treatment for their children even if they have religious objections to doing so. But it is difficult to imagine an interest compelling enough to force the Little Sisters of the Poor to violate their religious convictions regarding birth control. If state governments believe strongly that all women should have access to free contraception, they should provide it for them at their own expense rather than attempt to coerce organizations like the Little Sisters of the Poor.