December 27, 2013

COMMENTARY: Court rules contraception mandate infringes on freedom of religion

Joseph Reisert

The Affordable Care Act suffered another legal defeat this month, when a federal court in New York issued a permanent injunction to bar enforcement of a provision of the law that abridges the freedom of religion, in violation of the Religious Freedom Restoration Act — a law that was passed unanimously by the House and 97-3 in the Senate, and signed into law by President Bill Clinton.

At issue was the requirement that all group health insurance plans cover contraception, sterilization and related counseling services, at no out-of-pocket cost to the recipients. Many religious individuals and organizations, including Catholic, Protestant and Orthodox Christians, as well as Jews and Muslims, opposed the regulation on the grounds that it requires them to subsidize, and thus to endorse, conduct they conscientiously opposed.

Selected religious employers — churches and other religious congregations — are exempted from the requirement, but the mandate applies to religiously affiliated nonprofits and to all for-profit enterprises, many of which also object to the mandate.

In reply, the Obama administration proposed the following effort to accommodate the religious objections of selected religious nonprofits. (Many nonprofits were not eligible for the accommodation, and no accommodation was proposed for for-profit employers. In another legal action, a federal appeals court ruled that the mandate violated the religious freedom rights of for-profit employers, a case the Supreme Court has agreed to review this spring.)

Nonprofits, such as the Catholic high schools and the Catholic health care providers who brought the lawsuit in New York, that are eligible for the “accommodation” are required to certify to their insurers that they have religious objections to the provision of contraceptive services. In such cases, the insurers are required to provide the disputed services, at no additional cost to either the nonprofit or to the beneficiary.

Groups opposed to the contraceptive mandate rightly perceived this “accommodation” as a political effort by the administration to appear responsive rather than as a sincere attempt to respect the rights of religious conscience.

Under this so-called accommodation, religious nonprofits still are required by law to violate the tenets of their religion by facilitating the use of services to which they are sincerely and conscientiously opposed. They still are required by law to pay for health plans that provide the services to which they object. Even in the act of certifying their conscientious objection to the mandated services, they are made complicit in their provision.

The New York court held that, even with the “accommodation,” the Affordable Care Act imposed a substantial burden on the religious freedom of the eligible nonprofits.

The Religious Freedom Restoration Act permits the federal government to impose such burdens, but only when it has a compelling interest in doing so and when there is no other way to advance that compelling interest than by burdening religious practices.

The administration argued that it has a compelling interest in promoting public health by securing universal access to the contraceptive and sterilization services at issue.

The court rejected that argument, noting that the government cannot plausibly demonstrate “a compelling interest in uniform enforcement of the mandate, for the simple reason that enforcement of the mandate is anything but uniform. ... Having granted so many exemptions already, the government cannot show a compelling interest in denying one to these plaintiffs.”

Not only did it reject the claim that the contraceptive mandate served a compelling interest, the court also perceived many other ways the government could have accomplished its goal of providing universal access to contraception and sterilization without making employers provide them. To name only the most obvious, the government might have chosen to provide them itself or to have provided insurance coverage itself that provided them.

In an astonishing twist that illustrates how careless the administration has been with the implementation of its signal legislative achievement, the government filed a motion last month — five months after the federal rule making the “accommodation” was finalized — disclosing that it had just figured out that it had no legal authority to require the litigants’ insurers to accept it.

The court said that it was “difficult to fathom” how the government could not have known earlier that no law authorized it to act as it had proposed. The opinion adds: “It is unclear how citizens ... are supposed to know what the law requires of them if the government itself is unsure.”

Indeed. And, as we discovered this week with the partial suspension of the individual mandate to carry health insurance, it seems the administration is still unsure about what its signature law actually requires of anyone.

Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.
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