Supreme Court Sacrifices Reproductive Choice for Religious Rights

The most recent rift between religious conservatives and the Roberts Court has come to an end. After delivering a series of setbacks over LGBTQ and abortion rights, the Court handed religious conservatives a major victory. On July 8th, Clarence Thomas penned a 7-2 ruling solidifying religious autonomy and diminishing reproductive choice.

In Little Sisters of the Poor v. Pennsylvania, Thomas gutted the reach of the Affordable Care Act’s contraceptive mandate–which requires health plans to offer employees a range of no cost contraception. The decision licenses federal agencies to expand the types of employers who can seek religious exemptions. In so doing, it provides ample space for almost any employer to refuse to provide contraceptive coverage.

Opponents have challenged the Obama-era mandate–created by the Health Resources and Services Administration (HRSA)–in court several times over religious exemptions. Thomas’s opinion is the most recent in a long line of decisions sacrificing contraceptive choice to satisfy religious conservatives.

Hobby Lobby Strikes Again

The first major legal blow to the contraceptive mandate occurred in 2014 when crafting giant Hobby Lobby sued the Obama Administration over religious objections to certain forms of contraception. Hobby Lobby, a family-owned business, argued that their religious beliefs exempted them from having to comply. The Supreme Court agreed.

The Court relies on the Religious Freedom and Restoration Act (RFRA) in their 5-4 opinion to protect Hobby Lobby and any other private or “closely held” corporation from having to follow federal policies that violate their religious beliefs. Little Sisters of the Poor uses Hobby Lobby to amplify RFRA as a conservative weapon against contraceptive choice (and likely other progressive causes).

Thomas’s opinion upholds Trump guidelines that expand the list of organizations who can claim religious objections to the contraceptive mandate. These guidelines now allow even publicly held corporations to express religious or moral objections to contraceptive coverage.

Thomas’s decision could leave more than 120,000 women without access to no cost birth control if more employers choose noncompliance. It also raises questions over limitations on who can claim religious exemptions under RFRA–and which policies may be next.

RFRA’s Bipartisan Roots

Congress passed RFRA in 1993 in order to safeguard the religious rights of individuals–particularly those in unpopular or minoritized religions. Democratic Members of Congress like Chuck Schumer (D-NY) led the charge in order to overturn a Supreme Court decision that could have severely burdened minoritized religious practices.

That case, Employment Division, Department of Human Services, Oregon v. Smith (1990), centers on Alfred Smith’s right to receive unemployment benefits after he was fired from his job for using peyote. Smith, a member of a Native American church, ingested peyote as part of a church service. The Oregon Supreme Court as well as lower Federal courts, each supported Smith’s religious freedoms. But eventually, after multiple appeals, Oregon unemployment officials prevailed.

In an opinion crafted by the late Justice Antonin Scalia, the Court argued that supporting “a private right to ignore generally applicable laws” is not only “a constitutional anomaly” but would be akin to “courting anarchy.” To side with Smith’s religious rights, warned Scalia, “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

Scalia’s decision in Smith imposed a new and more restrictive conception of religious freedom. The Smith doctrine provided the government with more latitude to disregard the religious nature of policy infractions — a fact which especially hindered the freedoms of religious minorities like Albert Smith.

When Congress passed RFRA, it did so to protect any individual who might be persecuted or sanctioned because of their private religious practice. For instance, during hearings, members of Congress frequently referenced the drinking of sacramental wine or accommodations for the Sabbath. Of special interest, according to Senator Orrin Hatch (R-Utah) were individuals “whose religious beliefs and practices differ from the majority in a State or in the country.”

RFRA restored pre-Smith religious protections in two ways. First, it asks government actors to articulate a “compelling reason” for requiring individuals to comply with policies that encroach upon their religious beliefs or practices. Second, RFRA asks government actors to show that there are no other alternatives available to achieve those policy goals.

Conservatives Commandeer RFRA

Despite its bipartisan roots, Hobby Lobby transformed RFRA into a distinctly conservative legal juggernaut, a harbinger of the religious “anarchy” that Scalia had foretold. It has been especially costly to LGBTQ and women’s rights.

As Rea Carey, Executive Director of the National LGBTQ Task Force, explained, shortly after the decision:

“If a private company can take its own religious beliefs and say you can’t have access to certain health care, it’s a hop, skip and a jump to an interpretation that a private company could have religious beliefs that LGBT people are not equal or somehow go against their beliefs and therefore fire them….The implications of Hobby Lobby are becoming clear.”

Conservative groups seized upon Hobby Lobby to push for state-level RFRAs, specifically to protect the anti-gay, anti-choice positions of their constituents. For instance, when LGBTQ allies strong-armed Governor Mike Pence into signing a law prohibiting anyone from using Indiana’s RFRA to legitimize LGBTQ discrimination, conservatives recoiled. The amendment, they decried, is a “hammer to destroy religious freedom for Hoosiers around the state.”

Without RFRA, conservatives warned, “Christian bakers, florists and photographers would no longer have the benefit of Indiana law to help protect them from being forced by the government to participate in a homosexual wedding.”

Even the Court’s recent opinion prohibiting LGBTQ employment discrimination all but endorsed RFRA as a pathway for maintaining discrimination. Writing for the majority, Neil Gorsuch hinted that RFRA could be used to shield religious objectors from having to comply with the ruling.

“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws,” explained Justice Gorsuch, “it might supersede Title VII’s commands in appropriate cases.”

Now, with Little Sisters of the Poor, what started as a bipartisan effort to protect minoritized religious practices has become a wrecking ball wielded by conservative majorities to dismantle civil rights and diminish choice.

A Potentially Limitless Legacy

Thomas’s decision, however, does more than expand RFRA. In his own words, it also provides HRSA (and other agencies) with “virtually unbridled discretion to decide what counts as preventive care and screenings” and “equally unchecked” authority to “identify and create exemptions from its own guidelines.”

Without explicit legislative limits suggesting otherwise, religious conservatives could have a steady supply of options to subvert the ACA. That is, so long as they have a Republican president to heed their call. Those seeking to privilege their own religious beliefs can simply lobby the executive branch to enact religious or moral exemptions. Unless Congress specifically precludes the exemptions, there could be few limits on executive agency discretion.

In fact, coupled with Hobby Lobby, Little Sisters of the Poor would seem to actually obligate legislators and agencies to consider religious exemptions in any policy–not just for religious institutions but for any individual or organization.

This has special and dangerous implications for women, the LGBTQ community, racial minorities or any frequent target of religious ire. Sure, these groups will always contend with the burdens of bias. Those without majority status can never really bank on state support. Nevertheless, where legislative and legal protections exist, they can provide a critical safety-net.

These protections are now largely irrelevant. RFRA provides a miles-wide loophole that exempts organizations from complying with laws that protect civil rights. It remains to be seen just how willing organizations will be to reap these benefits…and just how costly it will be to communities who have the most to lose.