An argument against recognizing RFRA coverage of for-profit corporations that seems to be popping up with some regularity goes like this: Once courts recognize the right of evangelical employers to buy insurance coverage that excludes abortion-causing drugs and devices, or the right of Catholic employers to buy insurance coverage that excludes contraceptives, there is nothing to stop Jehovah’s Witness employers from buying insurance coverage that excludes coverage for blood transfusions. See, e.g., Matthew Boudway at dotCommonweal (“Should an overzealous Jehovah’s Witness be able to get a group plan that excludes coverage for emergency blood transfusions, even if none of his employees are coreligionists?”); Americans United for Separation of Church and State (“The logic of Plaintiffs’ argument would transcend the provision of coverage for contraception. A Jehovah’s Witness could choose to exclude blood transfusions from his company’s health-insurance coverage.”).
This argument obviously appeals to some, or they would not bother making it. But there are several reasons that the argument is weak. And the fact that some advance this argument seriously in reasoned public debate may work against improving mutual understanding of religious liberty. Consider:
(1) Has any Jehovah’s Witness employer ever made such a claim? I’m not aware of any. Yet all of the legal tools available to make such a claim have been available for years. It is hard to see how the roll down the slippery slope to this location would get started by rulings about the contraceptives mandate if it has not yet started in some other way.
(2) RFRA prohibits the government from substantially burdening the exercise of religion. The religiously objecting employer under RFRA seeks protection from a government mandate. I’m not aware of any blood transfusion coverage mandate by the government–probably because there is no problem out there of employers limiting coverage in this particular way. If Jehovah’s Witness employers have not sought to limit coverage even when there is no mandate preventing them from doing so, figuring out the scope of their religious freedom in this regard seems like an idle exercise.
(3) The people putting this argument forward may not even understand what Jehovah’s Witnesses actually believe. While the religion teaches its adherents to avoid blood transfusions, it is not at all clear (at least to me, anyway) that the religion teaches this as a matter of the moral law binding on all, rather than a form of divine positive law that is not binding on those outside the community of religious adherents. (For an articulation of this distinction, see this discussion by Mark Shea.)
(4) RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test. The application of strict scrutiny should stop the roll down the slippery slope from reaching the point where the government cannot use certain regulatory tools to achieve a compelling government interest. Even assuming that a substantial burden analysis comes out the same, the compelling interest is easier to identify in with respect to emergency blood transfusions. The need for an emergency blood transfusion is unpredictable. And in comparison with emergency contraception, which is available over the counter at most pharmacies (for around $40 for a generic or $50 for a brand name), emergency blood transfusions are much more expensive.
(5) The casual deployment of this Jehovah’s Witness example is sometimes coupled with related arguments that reveal a misunderstanding of the religious beliefs of other groups. For example, the same amicus curiae brief in which Americans United for Separation of Church and State advanced the Jehovah’s Witness argument also argued that “Catholic owners could deprive their companies’ employees of coverage for end-of-life hospice care and for medically necessary hysterectomies.” With statements like this, it is difficult to believe that this brief was reviewed before filing by someone familiar with Catholic moral teaching. Catholics object neither to end-of-life hospice care nor to medically necessary hysterectomies.
(6) A casual approach to religiously based moral beliefs that differ in some ways from majority-held moral beliefs can easily lead to harm through a failure to appreciate and offer reasonable accommodations. While my research into this issue did not uncover an example of a Jehovah’s Witness employer denying insurance coverage for a blood transfusion, it did reveal a case in which a state denied to a Jehovah’s Witness on public aid coverage for a bloodless liver transplant that was available out-of-state at lower cost than an in-state transplant requiring a transfusion. Mary Stinemetz eventually prevailed on her Free Exercise challenge to this denial, but by the time the case was over, her condition had apparently deteriorated too far for her to any longer be eligible for a transplant.
(7) Most of the people who are advancing this particular slippery-slope argument probably have no idea of the contributions that Jehovah’s Witnesses have made to the law of religious liberty in the United States. See, e.g.,Thomas v. Review Bd.; West Virginia Bd. of Educ. v. Barnette.
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