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Posts Tagged ‘contraceptives’

USA Today ran an editorial today arguing that businesses should not be able to rely on religious freedom in refusing to provide no-copay coverage for all FDA-approved contraceptive drugs and devices.  The newspaper also ran Mark Rienzi’s better op-ed for the opposite position. (HT: Mirror of Justice)

Both op-eds are written in plain English and make their points effectively. But USA Today’s house editorial is marred by a misunderstanding of existing religious liberty law. In particular, the editorial is written as if RFRA does not already exist. Instead of arguing that RFRA does not protect business corporations, as some have tried to do, the editorial simply misdescribes the state of the law. It argues that “the issue is one of balance” without describing the law that describes how that balance is to be struck. Indeed, the editorial describes “granting religious exemptions to private organizations” as “troubling” and “open to abuse,” seemingly unaware that RFRA exists and does precisely this. Although the Obama Administration has tried to carve out the category of for-profit, secular corporations from RFRA’s reach, everyone agrees that RFRA provides some “religious exemptions to private organizations.”

The editorial also is mistaken about Supreme Court precedent. Consider the following paragraph:

Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable.

This paragraph implies that the Supreme Court has said “no” to religious exemptions from laws on drug use and animal cruelty. But that is not true. In Gonzales v. O Centro Espirita Beneficente UDV, 546 U.S. 418 (2006), the Supreme Court held that RFRA provided an exemption for “drug use” in a religious ritual. (The lead party that brought the claim in this case, by the way, was a New Mexico corporation.) And in Church of the Lukumi Babalu, Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court held that the Free Exercise Clause protected ritual animal sacrifice by adherents of the Santeria religion; this ruling prohibited enforcement of a city ordinance justified in part by concerns about animal cruelty.

A bigger problem with USA Today’s statement of the law, however, is that it conflates laws that explicitly target religion and laws that place a substantial burden on religion, and then contrasts those two kinds of laws with laws that “impose broad, secular requirements on society that people might find religious objectionable.” The problem with this framing is that some laws that impose broad, secular requirements on society also place a substantial burden on religion. And that is why Congress passed RFRA. Unlike the Free Exercise Clause, which the Supreme Court has held to provide no protection against neutral and generally applicable laws, RFRA protects against such laws whenever they impose a substantial burden on religion. RFRA’s protections are triggered by the imposition of the burden, not the nature of the law imposing that burden. RFRA claims do not always win, of course. But RFRA places the burden on the government to satisfy strict scrutiny when a federal law imposes a substantial burden on the exercise of religion. If the Obama Administration has to satisfy strict scrutiny for its contraceptives mandate, it will lose.

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Today is the deadline to file comments on the HHS Mandate Notice of Proposed Rulemaking. Among the many groups commenting today are the Little Sisters of the Poor. Their comments filed today are available here, and their prior statements on the HHS Mandate are available here and here.

As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.

President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.

Some excerpts from the comments:
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Today’s Richmond Times-Dispatch contains an op-ed that I authored about the availability of a claim under the Religious Freedom Restoration Act for religious organizations that object to the contraceptives mandate. The policy changes announced Friday are certainly a step in the right direction. But the RFRA litigation will continue.

The ending of the op-ed–written earlier in the week and quickly revised immediately after the President’s announcement on Friday afternoon–is more tentative than I now believe is warranted. I wrote: “Should legal action continue to be necessary — and it very well could as more details of the administration’s changed plan take shape — the federal courts remain open for the enforcement of Congress’ broad understanding of religious liberty against an unreliable executive branch.”

If Friday’s announcement is the Administration’s “final offer,” continued litigation will be necessary. The reason why is captured well in the following statement by a group of distinguished legal scholars:

The reason for the original bipartisan uproar was the administration’s  insistence that religious employers, be they institutions or individuals, provide insurance that  covered services they regard as gravely immoral and unjust. Under the new rule, the government  still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

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Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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