Civil and Human Rights

Religious Liberty Claims Run Amok

By Kenneth Jost

Women’s access to contraceptives will be the main issue when the Supreme Court hears arguments this week in its fourth encounter with President Obama’s health care reform plan. An array of nonprofit religious organizations are challenging the requirement to notify the government or their health care insurer to get out of the mandate to provide no-cost contraceptives as part of their employee health insurance plans.

A leading death-with-dignity group is urging the justices, however, that a ruling for the religious groups also could undermine state laws protecting the right of terminally ill patients to reject extraordinary life-sustaining measures. In a friend of the court brief, the Oregon-based Compassion and Choices worries that a broadly phrased ruling in favor of the religious liberty claims “could, inadvertently, substantially impair the implementation of people’s end-of-life healthcare choices.”

Lawyers supporting the religious groups in the case who spoke at a Cato Institute forum on Friday [March 18] discounted the group’s fears of a slippery slope decision affecting right-to-die cases. But the concerns illustrate the Pandora’s box that the court opened two years ago when it first recognized a religious liberty exemption from the contraception mandate under Obamacare.

Religious liberty, it seems, has now displaced patriotism as the last refuge of the scoundrel. Legislatures in more than a dozen states have either enacted or considered broadly phrased religious freedom laws aimed at allowing business to discriminate against gays and lesbians.

The Georgia legislature approved a bill along those lines last week, but a late-added provision specifies that it would not allow discrimination prohibited under federal civil rights law. Gov. Nathan Deal, a Republican, has not said whether he will sign the bill. Business groups oppose it even with the late modification.

The Supreme Court’s 5-4 ruling in the earlier contraception mandate case, Burwell v. Hobby Lobby Stores (2014), allowed private employers to claim an exemption from the contraception mandate under the federal Religious Freedom Restoration Act (RFRA). The Obama administration responded by crafting an exemption for religious nonprofits, such as Catholic colleges or charitable organizations. Under the “accommodation,” a religious nonprofit is required only to send its health care insurer or the government a form or letter claiming the exemption; the insurer then would be required to provide the contraception coverage itself.

In Zubik v. Burwell, the religious nonprofits are arguing that the exemption still impermissibly burdens their religious rights under RFRA. “This is a strange case to wrap one’s head around,” Steve Schwinn, a professor at John Marshall Law School, aptly writes in the American Bar Association publication Preview. (David Zubik is bishop of the Catholic diocese of Pittsburgh; Sylvia Burwell is secretary of the Department of Health and Human Services.)

At the Cato program, Lori Windham, a senior counsel with the Becket Fund, a religious liberty litigation group, argued that the administration’s workaround amounts to “the government coming in and taking over a piece of your contract” with the health insurer. She also argued that the government cannot prove the “compelling interest” in women’s health needed to get out from under RFRA because of other exemptions from the contraception mandate.

In response, Elizabeth Wydra, president of the Constitutional Accountability Center, argued that the exemption being claimed by the religious nonprofits “would stretch the concept of religious liberty beyond a point where it cannot be sustained.” Wydra noted that conscientious objectors to military service are required to do much more than fill out a form to claim the exemption. Besides proving their right to the exemption, she explained, the conscientious objector has to perform some form of alternative service.

The religious nonprofits argue in effect that claiming the exemption would make them complicit in the health insurer’s actions providing forms of contraception to which they object. The death-with-dignity group sees the risk of a similar argument from Catholic hospitals or hospices subject to laws in 47 states requiring them to respect patients’ rights to refuse life-sustaining measures.

Laws on the books in all states except Michigan, North Carolina, and Washington require health care providers with moral objections to patients’ health care decisions or advance directives to comply with patients’ requests for transfer to a provider that will comply with their wishes. It is not fanciful to imagine that a Catholic hospital could argue that complying with the transfer request burdens its religious liberty by making it complicit in an end-of-life decision prohibited under Catholic teaching.
In Hobby Lobby, Justice Ruth Bader Ginsburg complained in dissent that the court’s indulgence for the religious rights of the company’s family owners came at the expense of the rights of their employees under the federal regulation. She also worried that the decision opened the door to claims for religion-based exemptions from anti-discrimination laws, a fear that Justice Samuel A. Alito Jr. discounted in the majority opinion.

So far, courts are rejecting efforts by bakers and florists, for example, to claim religion to justify refusing to serve same-sex couples. But the Supreme Court has not ruled on the issue, and lawmakers in many states are doing what they can to create a religious exemption for anti-LGBT discrimination. And in the new case, the justices again have to decide whether women’s access to health care must be sacrificed to a religious liberty claim stretched further than any previously recognized in American law.

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