The travesty of the Health and Human Services mandate in the Affordable Care Act continues to rankle. The mandate requires employers to underwrite for employees contraceptives, including abortion-inducing drugs such as Ella, and female sterilization through their insurance programs. The law is driving complainants of many religions to court.
Some religious non-profits have a safe harbor and do not have to fund health plans that cover contraceptives and sterilization until after August 2013. For-profit companies, however, are under the gun now. The for-profit business owners who object to the mandate either must violate their consciences and pay for plans that include services they morally oppose or hold to their principles and face backbreaking fines.
The Becket Fund reports that there are 43 cases and over 110 plaintiffs challenging the mandate in court. So far, at least 12 for-profits have obtained initial rulings that take up the merits of their case, and nine of those rulings have granted the companies preliminary injunctive relief against the mandate.
Reasons for the decisions vary. In some instances the court recognizes that the government is likely violating the Religious Freedom Restoration Act, which forbids the federal government from substantially burdening religious exercise, unless it is the least restrictive means of furthering a compelling government interest. One plaintiff suggested that if the government is bent on saturating the nation with contraceptives, it might hand them out for free rather than force churches and others to pay for them.
A Federal Court in Missouri issued a temporary restraining order on December 31 invoking both the First Amendment and RFRA in Sharpe Holdings, Inc. v. United States Department of Health and Human Services. According to the blog Religion Clause, “the court concluded that under the Religious Freedom Restoration Act the mandate and its penalties would substantially burden plaintiffs’ free exercise rights.” It added also that “for 1st Amendment purposes, the mandate is not a neutral law of general applicability.”
Said the court: “[T]he ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees.” It agreed with plaintiffs’ argument that the “mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes. Burdens cannot be selectively imposed only on conduct motivated by religious belief.”
In Michigan, a federal district court held that the property management company, Domino’s Farms Corp., and its owner Thomas Monaghan (founder of Domino’s Pizza) had adequately alleged that the mandate imposes a substantial burden on Monaghan’s Catholic religious beliefs. The court noted that the Supreme Court has held that “‘putting substantial pressure on an adherent to modify his behavior and to violate his beliefs’ substantially burdens a person’s exercise of religion.” The district court added that for itself, “the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate.... Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions.”
The court added that the government had not carried its burden under the RFRA showing that it had a compelling interest or used the least restrictive means in burdening plaintiff’s free exercise.
Decisions conflict. The judge in Grote Indus. v.Sebelius in Indiana ruled against the plaintiff and declared that the burden of the mandate is “likely too remote and attenuated to be considered substantial.”
Personally, it is hard to see how forcing someone, against his conscience, to purchase insurance coverage that includes abortion-inducing drugs could not be a substantial burden. In a Chicago courtroom, the Seventh Circuit judges in Korte v. Sebelius got it right when they responded to similar arguments that “the religious‐liberty violation at issue here is inherent in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.”
Simply put, the issue is not about using contraceptives, it is being coerced to offer or purchase a plan that covers them. Clearly courts should not be in the business of telling people – be they businessmen or bishops – what constitutes a substantial burden on their exercise of religion. The few courts that have ruled the wrong way so far have impermissibly delved into a moral analysis of religious claims.