Religious Exemption Cases Come Out of the Woodwork

The Supreme Court at the end of March heard seven petitions clustered under Zubik v. Burwell arguing that employers should not be required against their religious principles to facilitate even indirectly contraception for their employees as required of insurance plans by the Affordable Care Act.

Their suits are a follow-on from the Court's decision in favor of the Hobby Lobby corporation, which gave a closely-held family-owned business a special exemption from paying for insurance that includes contraceptives. Doing so, went the plaintiffs argument, offended the religious sensitivities of the corporation. You read that correctly.

Justice Elena Kagan foretold the ruling would bring religious objectors “out of the woodwork”, and here they are — just a fraction, says one source, of all the petitioners who got religion since Hobby Lobby and who seek to evade paying extra for contraceptives in their insurance plans.

Leading the suit for maximum empathy is the Little Sisters of the Poor, Catholic nuns who care for the aged. As an accommodation after Hobby Lobby, the Obama administration arranged a carve out whereby religious objectors could simply make that known on a government form and provide the name of their insurer. Health and Human Services would then connect directly with the insurer to make arrangements for contraceptive coverage for the organization's employees. The Little Sisters and their followers would be entirely removed from the process, exempted from paying for it, and unsullied by the "evil acts" of preventing pregnancy.

But that — just filling in a form — was asking too much. The plaintiffs argue that simply by informing the government of their insurer, they would be "complicit" in "facilitating" their employees to obtain a benefit available to all other women under Obamacare. In a New York Times op-ed little sister Constance Veit complains, "that would force us to change our religious health plan" and "what we offer in our plan". Except that the plan does not belong to them; it is the insurer's plan.

The question is, or ought to be, shouldn't religious freedom end where it affects the freedom from religion of others? The sisters, who devote their lives to others, perhaps feel they have a right to now think only of themselves at the expense of others. No employee is forced or encouraged to use contraceptives, of course; the government workaround only makes available the right to exercise their own options rather than be prevented by the dictates of nuns.

But the conservative wing of the Court — Thomas, Alito, Roberts and Kennedy — all Catholics — showed their bias in questioning. By asking whether accepting the government's offer would make plaintiffs "complicit in the moral wrong", Justice Kennedy revealed his belief that contraception is morally wrong. First Kennedy and then Roberts adopted a prejudicial word used by petitioners which spoke of the government "hi-jacking" the religious groups' insurance plans.

Not for the first time did the justices reveal how remote from the actual world they became when they joined the cloister of the Supreme Court. Couldn't employees use the exchanges created under the Affordable Care Act to find insurance for just contraception, asked Justice Alito? "She'll have two insurance cards instead of one". This expects insurers in 50 states would be willing to set up separate plans, apparently for contraceptives only, to fill in what's missing from the religion-prescripted plans, presumably at a cost at least equal to the contraceptives themselves. How else would insurers cover the cost of a benefit that all applicants would avail themselves of? Yet, Roberts, too, seemed to think this had possibilities.

Four appeals courts' rulings are under review. All have ruled against the religious groups, as have other appeals courts, finding the government accommodation reasonable. But the split that brings the case to the Supreme Court is the ruling of the mid-country U.S. Court of Appeals for the Eighth Circuit which said that the government requirement violates 1993’s Religious Freedom Restoration Act (RFRA, spoken of as "Rifra"). That act says that a government action "shall not substantially burden a person's exercise of religion" unless it is "the least restrictive means of furthering a compelling government interest". The Eighth Circuit finds that filling out a form is overly burdensome.

A 4-4 split would leave standing the rulings of the lower courts, thereby causing differing obligations under Obamacare around the country based on which way a district's court has ruled. And it would mean the case will need to be re-argued when, if ever, a ninth justice is confirmed.

Seeking to avoid another 4-4 split, the Court after the hearing ordered the parties to file supplemental briefs by April 12 that consider a workaround the justices propose: couldn't the Sisters and other petitioners offer insurance plans lacking contraceptive coverage, and couldn't the insurance companies, knowing that such coverage is missing, inform those employees directly that add-on coverage is available, paid for by the government?

By this stratagem, the religious side of the Court hopes to inveigle the liberal side of the court to join them, so as to cave in to the petitioners' special pleading that providing a modicum of information on a form is too substantial a burden to petitioners' exercise of religion. Honoring that extreme says that nothing would qualify as "least restrictive means". It nullifies a key clause of RFRA and gives religious institutions free rein to wriggle free of the laws that bind others. An à la carte legal system.

Judge Cornelia Pillard of the D.C. Circuit Court of Appeals had it right when she wrote in her opinion that the administration's accommodation indeed "requires as little as it can from the objectors while still serving the government's compelling interests".