Contraception, Catholics, Compulsion, and Compelling Interests

There’s been quite a bit of discussion recently about the Obama Administration’s manner of implementing provisions of the Affordable Care Act by requiring that employer-funded healthcare plans include contraception. By now, every Reader here should be familiar with the objection: employers owned or controlled by the Roman Catholic Church and other religious entities object to the use of contraception on religious grounds, and they want an exemption to this provision of the ACA. The Administration has signalled that it is willing to allow these employers to not directly fund this, by way of instead having insurers provide the contraception, but this is obviously a tissue of cover which those religious employers see through and does not assuage their concerns.

Seems to me, though, that before we treat this as a cultural issue, we need to look at it as a legal one. If it turns out that the law, or the interpretation and implementation of that law, violates the Constitution, we need not consider further whether we think it is a good idea, a reasonable idea, or even a defensible one. Also, if we can see that the law does constitute a restriction on religion, that will educate a discussion about a purported “war on religion” advanced by the Obama Administration.

I don’t believe there is a “war on religion” underway, but at the same time, I have a strong constitutional concern about this law, so this particular issue is not strong evidence for my first thesis. More after the jump…

Here, religious employers have an objection to a particular rule and the question is whether the rule is enforceable against that objection. This, Ladies and Gentlemen, is what we call a “Constitutional challenge,” in this case based on the Free Exercise Clause. The Free Exercise Clause of the First Amendment reads as follows: “Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof” (emphasis added).

The test for determining whether this provision of the Constitution has been violated has been the subject of some judicial and legislative wrangling over the last generation and is not exactly clear as applied to a state government. But we can be clear that at least as to the Federal government, is functionally the same now as it was 1963. Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006).* That test, confirmed in statute, was originally described in the case of Sherbert v. Verner, 374 U.S. 398 (1963), and has two two-part prongs. Note, though, that this is the result of legislative action, which I’ll address in a moment.

Under the Sherbert test, the challenger must meet an initial burden of proving two facts:  first, whether the plaintiff challenging the Federal law has a claim implicating a sincerly-held religious belief, and second, that a governmental action imposes a “substantial burden” on the exercise of that belief. If the plaintiff cannot make that showing, the plaintiff loses and the governmental practice is valid.

Upon making that proof, the plaintiff presumptively wins, and the burden then shifts to the government to justify its action by proving two additional things. First, the government must prove that it is acting in furtherance of a “compelling governmental interest,” and second, that its actions are narrowly-tailored to realize that interest in the fashion that is least restrictive on religious freedom possible. If the government can meet both tests, it has redeemed the law, and it prevails. Otherwise, the plaintiff wins the constitutional challenge.

Under the Sherbert test, I see very little problem with the challengers being able to meet their burden. There should be little doubt that the RCC has a sincere religious objection to the use of contraception. I need not normatively agree with that objection to acknowledge its sincerity, nor should anyone else. The question on this side of the test would be whether being required to pay for contraception in an employee health care plan, whether directly or indirectly through a private insurer, imposes a burden on that belief.

And of course it does. I’m an atheist and I object to my money being taken from me at the government’s behest and its then being used to pay for things that promote religion. For instance, this entity raises a big Establishment Clause problem for me no matter how noble and beneficial its activities are. (Note that the Supreme Court chose to duck the issue rather than address it on its merits, Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007)). It’s tax dollars being spent to subsidize religious activities. So I am similarly sensitive, on behalf of my religious counterparts, of their money being used to pay for things to which they have specific religious objections. It does no good to use the two-step method proposed by the Administration to filter the funding through a private insurance company, because at the end of the day, it’s still the government telling the RCC to use its money to buy The Pill.

Think of it this way — could Congress compel the RCC to pay for an abortion? Never mind that it would never do such a thing, the question is could it? And the answer to that should be in the negative, because to the RCC, abortion is murder and no reasonable observer could doubt the truth and sincerity of that statement. The RCC holds that abortion and contraception are both serious moral matters implicating human life.

The burden then shifts to the government to justify itself. What “compelling governmental interest” is advanced by requiring employers to provide The Pill to its employees in its health insurance plans?

I can think of scads of legitimate governmental interests that this practice might meet, if we were dealing with something to which we could properly apply the rational basis test. But it’s not — freedom of religion is a fundamental, enumerated, individual Constitutional right, which means we need to use a strict scrutiny standard as articulated in Sherbert. Providing good, comprehensive health care to all Americans is not a matter of national survival. It is not something against which the very fundament of the Republic, of our culture, of national security, must be balanced.

Health care is a good, but not a compelling one. Indeed, there are very substantial arguments that health care is not the business of the Federal government at all, and that it does not even survive a rational basis test when compared with Congress’ enumerated powers. I happen to disagree with that argument, but we need not dig into that matter here. Suffice to say that if that argument were ultimately to prevail, and even Medicare were to be repealed in full, the rule of law and orderly society in the United States would not break down.

This is also why I am largely unconcerned with whether Sherbert v. Verner is fully viable law after Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). Even if it isn’t, the First Amendment is still in effect and the First Amendment still demands application of strict scrutiny against the use of governmental power when that power implicates a fundamental right like religious belief. So I recognize a legal argument that maybe, by passing the ACA, Congress carved out (perhaps unintentionally) an exception to the Religious Freedom Restoration Act of 1993, which legislatively reinstituted the Sherbert test after the Smith case, and even if Gonzales v. O Centro Espírita Beneficente União do Vegetal did not make clear that Sherbert is the appropriate framework under RFRA for at least Federal-level Free Exercise claims, we’d still be in the world of needing to find both a compelling interest and narrow tailoring.

The pay-for-it-through-third-party-insurance option offered recently by the Administration looks aimed more at the fourth factual issue, narrow tailoring, than it is at identifying a compelling governmental interest. I can see that this proposal might make achieving the objective of providing contraception as part of a health care plan easier to implement for a religious institution that objects to contraception. I don’t think it gets there because an indirect compulsion to pay for something objectionable is still a compulsion to pay for something objectionable, but again, I don’t need to reach that issue.

The absence of a compelling governmental interest in a contraception mandate renders this portion of the Affordable Care Act, at least as implemented in this instance, an unconstitutional violation of the Free Exercise Clause. The principled thing for the Administration to do is set up a process by which religious institutions can apply for and reasonably obtain exemptions from being required to comply with this portion of the Act.

 

* This happens to be among my favorite case names in all of Supreme Court history.

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