What’s At Stake In The Birth Control Mandate Cases
Earlier this week, the Supreme Court accepted for review two cases involving the Affordable Care Act’s mandate that employer based health care plans provide coverage for pretty much all forms of prescription birth control, a decision that has been a source of controversy among religious organizations and employers with strong religious beliefs since the day it was announced. Indeed, over the two year period some 70 lawsuits have been filed nationwide regarding the mandate, the vast majority of them by for profit companies who owners have asserted that the mandate would require them to violate their religious beliefs. As has been noted in the many posts here at OTB that I’ve written tracking how the Federal Courts have dealt with this matter1, there’s been substantial variation in how the legal issues raised by these cases have been handled by the various courts that have ruled on the issue. To summarize those holdings, though, it’s roughly true to say that the Courts are just about equally divided on the ultimate issue in the case, whether an employer can be required by the state to provide coverage for contraceptives as part of an employee health care plan even if doing so violates their religious beliefs. Among those courts that have found that it does, there has also been a roughly equal split on whether the right in question belongs to the corporation or to the individuals, who are merely acting through the corporate entity of which they are the sole or majority owner. Assuming it gets past preliminary issues like standing, these are the questions that the Supreme Court will be dealing with when it hears the cases some time next year.
These cases raise several important issues, of course, ranging from the extent to which the state can dictate the terms of contracts between employers and employees, to the extent to which the owners of a corporation retain their Constitutional rights if they choose to do business as a corporate entity, to, of course, the issue of religious liberty. For Linda Greenhouse, however, who covered the Supreme Court for The New York Times for some 30 years before retiring in 2008, published a piece in the Times, the cases are only about one thing, sex:
The question of whether for-profit companies can claim a religious identity, one that exempts them from obeying a generally applicable law, is fully worthy of the attention the Supreme Court is about to give it. But to the extent that much of the commentary about the challenges to the Affordable Care Act’s contraception-coverage insurance mandate frames the issue as a debate about the rights of corporations – as a next step beyond Citizens United’s expansion of corporate free speech – I think it misses the point. What really makes these cases so rich, and the reason the court’s intervention will dramatically raise the temperature of the current term, lies elsewhere.
The religious-based challenges that have flooded the federal courts from coast to coast – more than 70 of them, of which the Supreme Court agreed on Tuesday to hear two – aren’t about the day-in, day-out stuff of jurisprudence under the First Amendment’s Free Exercise Clause: Sabbath observance, employment rights, tax exemptions. They are about sex.
As such, the cases open a new front in an old war. I don’t mean the overblown “war on religion” that some Catholic leaders have accused the Obama administration of waging. Nor do I mean the “war on women” that was such an effective charge last year against a bevy of egregiously foot-in-mouth Republican politicians.
I mean that this is the culture war redux – a war not on religion or on women but on modernity.
All culture wars are that, of course: the old culture in a goal-line stance against a new way of organizing society, a new culture struggling to be born. Usually, that’s pretty obvious. This time, somehow, it seems less so, maybe because the battle is being fought in the complex language of law, namely a 20-year-old law called the Religious Freedom Restoration Act.
This tendentiously named statute, aimed at overturning a 1990 Supreme Court decision that cast a skeptical eye on claims to religious exemptions from ordinary laws, provides that the government “shall not substantially burden a person’s exercise of religion” unless the burden serves a “compelling” government interest and is the “least restrictive means” of doing so.
There’s a powerful argument to be made, both in policy and law, that an employer of any faith or no faith who chooses to enter the secular marketplace can’t pick and choose which rules to follow. As some of the federal judges who have rejected the religious claims in these cases have pointed out, no employer would have the right to tell employees that they can’t use their wages to obtain contraceptives, abortions or any other legal product or service. By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on – no more than a local government endorses a parent’s choice to use a taxpayer-funded voucher for religious-school tuition. The Supreme Court for decades has embraced the notion that an intervening private choice of this sort, even when a government program is clearly designed to channel public money to religious institutions, avoids what would otherwise be a violation of the First Amendment’s Establishment Clause.
So now, once again, the court will have the last word. A ruling against the contraception mandate won’t kill the Affordable Care Act – much as some justices might fervently desire that result. If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.
It is, of course, not surprising that Greenhouse would choose to characterize the issues in these cases as cultural rather than legal. Doing so tends to undercut the legitimacy of any of the legal arguments against the mandate and to turn the entire matter into just another battleground in a war that arguably began back in 1965 when the Supreme Court issued its opinion in Griswold v. Connecticut striking down a law against the sale of contraceptives to married couples that served as the launching pad for decisions on abortion, gay rights, and a whole host of other issues. Indeed, framing this as a cultural rather than a legal issue is to the advantage of partisans on both sides of the aisle (and have no doubt, Greenhouse is and always has been a partisan of the left side of the political aisle). For the right, the mandate is politically useful because it serves as evidence for what they have long claimed is a government war on people of faith. For the left, it’s politically useful because it serves as a convenient example of the supposed efforts of people of faith to force their religious beliefs on society as a whole. As a matter of law, though, these cultural issues are entirely irrelevant and, as someone who covered the Court during the time went it dealt most prominently with many of these issues, as well as several prominent religious liberty issues, Greenhouse really ought to realize that.
As Ann Althouse points out, characterizing the cases at issue as being “packaged as an exercise in statutory interpretation” in the dismissive manner that Greenhouse does in her piece is quite absurd, because that’s exactly what these cases are in the end. While at least one of the cases that the Court has accepted includes claims that the mandate is a direct violation of the Free Exercise Clause of the First Amendment, these cases are principally about a conflict between the PPACA’s mandate and the Religious Freedom Restoration Act (RFRA). The RFRA is, as I’ve explained before, a 20 year old law passed by Congress in response to the Supreme Court’s decision in Employment Division v. Smith in which the Court had decided that two Native Americans could be denied unemployment compensation after being fired for drug use, even though the drug in question was peyote and that it had been used in a Native American religious ceremony. Because of its far-reaching implications, the decision ended up uniting groups that were normally on opposite sides of the church-state divide, and support for the RFRA was largely bipartisan. Indeed, the principal sponsors of the RFRA were then Congressman Chuck Schumer and Senator Ted Kennedy, both of whom had a long and bipartisan list of co-sponsors for their versions of the bill in their respective Chambers of Congress. The bill passed Congress easily and was signed into law by President Clinton in 1993, who was a strong supporter of the law from the beginning. At its core, the RFRA states that religious liberty should not be “substantially burdened” by a generally applicable law absent a “compelling government interest.” At least as it applies to the Federal Government, the RFRA has been upheld by the Supreme Court and has been applied countless times by people and incorporated entities asserting that their religious liberties were being substantially impaired by what is otherwise a generally applicable law.
To argue as Greenhouse does that these cases are purely about sex and culture is, therefore, quite absurd. The Federal Government passed a law that includes a mandate regarding what employers must include in the health care insurance they provide to employers and certain employers are arguing that, in part, this mandate violates their religious beliefs. This is precisely the type of situation that the RFRA was intended to address, and the question for the Court will be whether or not the employers rights under the RFRA trump the Federal Governments authority as granted by the the PPACA. Indeed, as Althouse notes, Congress could have tried to pass a version of PPACA that excluded this mandate from being covered by the RFRA, but they did not do so. Since they didn’t it’s up to the Courts to decide how to reconcile these two particular statutes. To argue, as Greenhouse seems to, that this is an issue that the Court shouldn’t even bother dealing with because its so silly is absurd. There is a conflict between wo perfectly valid Federal Laws and its the Court job to decide how to resolve that conflict.
Jazz Shaw, meanwhile, would like to see the Court address a far larger issue:
The question I would like to hear the SCOTUS justices ask the participants in this case is as follows: “Do you believe that the government has the power to tell employers how many days of paid vacation they have to offer their employees?“
The Court, of course, is limited to deciding a case based on the facts and laws before it, so it’s not going to really reach an answer to that particular question even if one of the Justices asks the parties attorneys a question like this as a hypothetical question. While it is an important philosophical one, Jazz’s question would be more appropriate for a cast that attacked the legitimacy of the employer mandate to begin with. That type of case, of course, would involve issues arising under the Federal Government’s powers under the Interstate Commerce Clause and the extent to which those powers include the right to control the terms of employment. In that regard, it’s worth noting the Federal Government already does place certain mandates on this relationship when it comes to the hours of “regular” employment versus “overtime” for hourly employees under the Fair Labor Standards Act, employee safety under the laws the established the Occupational Health And Safety Administration, and, of course, a whole series of civil rights laws ranging from the 1964 Civil Rights Act to the Americans With Disabilities Act. Each of these laws has been upheld by the Supreme Court. Would the same be true of ObamaCare’s employer mandate? Given how the Court ruled on the Commerce Clause issues in the cases challenging the individual mandate, there would seem to be a good argument against that portion of the law, but until such a case gets before the Supreme Court we won’t know for sure.
These cases are not about sex, they are not about culture, and they are also not about women having the right to use contraceptives, principally because there is no such thing as a right to have the cost of your contraceptives covered by an employer-provided health insurance policy. Additionally, if an employer did decide not to provide coverage for contraceptives under an employee health insurance plan, or not to provide employee health insurance at all, there would be no legitimate legal claim that affected employees could make. In the end, when the Court rules on this matter, it’s going to rule on whether the employers rights under the RFRA are violated by the mandate that they provide birth control coverage. That is really the only issues in the case. These are important issues that the Court rightly ought to resolve. Additionally, as I’ve noted in my previous posts, there is significant merit to the religious liberty issues raised by the employers involved in these cases. To blithely dismiss them as Greenhouse and other commentators on the left have done is quite simply intellectually dishonest.