The Fight Over the Affordable Care Act and Birth Control Is Back at the
Supreme Court
By David H. Gans, Slate
05 May 20
In 1756, the Rev. Francis Alison, a prominent minister from Pennsylvania,
urged people in the colonies of all religious persuasions to join together
to help win the French and Indian War. In making a point about conscientious
objectors, Alison argued that "[a]ll . should have a free use of their
religion, but so as not on that score to burden or oppress others." Alison's
understanding of religious liberty would be reflected in the Pennsylvania
Constitution of 1776, which freed conscientious objectors from having to
fight but required them to pay for a substitute.
The story of how conscientious objector laws have safeguarded religious
liberty, while also protecting the rights of others-laid out in a brief
filed by prominent military historians-should be front and center on
Wednesday when the Supreme Court hears Little Sisters v. Pennsylvania and
Trump v. Pennsylvania. In those cases, a religiously affiliated employer
known as the Little Sisters is urging the Supreme Court to bless the Trump
administration's decision to give employers an unconditional religious
exemption from the contraceptive coverage requirements of the Affordable
Care Act and declare the ACA's religious accommodation unlawful.
In 2014, a bitterly divided Supreme Court in Burwell v. Hobby Lobby Stores
held that closely held corporations, whose owners had a religious objection
to providing contraceptive coverage, were entitled to avail themselves of
the religious accommodation contained in the ACA's regulations. Under the
Religious Freedom Restoration Act, such businesses would be entitled to
shift the obligation to provide contraceptive coverage to their insurance
companies. For the first time in history the Supreme Court held that some
business corporations were entitled to religious accommodations, sending the
message that owners of companies could invoke their religious beliefs to
skirt the law.
The silver lining in the 5-4 ruling was the majority's recognition that the
ACA's religious accommodation provided the key to taking account of the
rights of all parties. The majority concluded that the accommodation is "an
alternative that achieves all of the government's aims while providing
greater respect for religious liberty" and guarantees that "women would
still be entitled to FDA-approved contraceptives without cost-sharing." Now,
the Little Sisters and the Trump administration are asking the Supreme Court
to shelve that part of the Hobby Lobby ruling and strike down the
accommodation.
This is not the first time the Supreme Court has been asked to take this
step. In 2016, in Zubik v. Burwell, the court heard a set of cases in which
employers argued that the accommodation violated RFRA. But an eight-member
court failed to resolve the issue. That is unlikely to happen this time
around.
In more than two centuries, the Supreme Court has never struck down a
religious accommodation on the ground that it substantially burdened the
free exercise of religion. The Little Sisters, joined by the Trump
administration, is urging the court to take that extreme step for the first
time. Even though the ACA's religious accommodation eliminates any role for
the employer in providing contraceptive services and shifts the burden of
paying for contraceptive coverage to insurance companies, the Little Sisters
argues that the accommodation still tramples on its religious beliefs. In
its view, the government may not require it to do anything-even a
ministerial task as simple as filling out a piece of paper-if the end result
is that even one of its employees could enjoy the access to contraceptive
coverage that the ACA requires.
When the Supreme Court hears oral argument on Wednesday-which will be
livestreamed for all to hear as part of the court's social distancing
measures taken in response to COVID-19-the questioning is likely to focus on
RFRA and the court's precedent. But the court should not ignore centuries of
historical practice that have given meaning to the guarantee of the free
exercise of religion.
The sweeping arguments for a total religious exemption are profoundly
inconsistent with the history of religious accommodation in this country and
the backdrop against which the Framers crafted the First Amendment.
Throughout American history, religious accommodations that have allowed
objectors to opt out and to transfer their legal duties to others have been
a crucial means of respecting religious liberty in a nation of diverse
faiths.
From 1776 to the present, conscientious objector laws have exempted those
with a religious objection to war from combat, while still requiring them to
aid the nation during wartime. What the Little Sisters denounces as a
violation of their freedom of conscience is what history shows is a common
practice: accommodating religious objectors by shifting their obligations to
third parties who do not share that objection.
In 1776, the people of Pennsylvania enacted a new Constitution, which
relieved conscientious objectors of the duty to fight but required those
opposed to war to "pay such equivalent" in order to find a substitute. The
Keystone State was not alone in rejecting an unconditional exemption. In
numerous states, conscientious objector laws enacted at the time of the
American Revolution and the writing of the Constitution required individuals
objecting to participation in military service on religious grounds to pay
for a substitute.
Religious accommodations for military service also figured prominently in
debates over the Bill of Rights. During debates in Congress over proposals
to include a religious exemption from combat in the Second Amendment,
members of the First Congress stressed that conscientious objectors had to
do their part to ensure the safety of the nation. A religious exemption from
combat would be "unjust, unless the constitution secured an equivalent."
Ultimately, the Second Amendment did not contain a religious accommodation,
leaving matters to the states. In many states, a conscientious objector had
to pay for a substitute.
Since the Civil War, federal draft laws have accommodated individuals with a
religious objection to war, requiring them to perform alternative service.
Under these laws, an individual who considers war sinful cannot refuse to
participate in the war effort entirely. What is more, a conscientious
objector cannot stop a draft in its tracks by insisting that calling up the
next draftee makes him or her complicit in sin. As Justice Sonia Sotomayor
commented during oral argument in Zubik, the logic of the argument for an
unconditional exemption would wreak havoc with federal draft laws. Look for
her to press this line of questioning again.
Our Constitution and laws place the highest of values on religious liberty,
recognizing the right to practice's one's religion as critical to freedom,
dignity, and self-definition. But the Affordable Care Act has already
accommodated the beliefs of those who have a religious objection to
contraception. What the Little Sisters wants-to prevent insurance companies
from assuming their legal duty-would pervert our cherished constitutional
values of religious liberty. It would allow employers to impose their own
religious beliefs on their employees and extinguish important federal rights
secured by the Affordable Care Act. Women would be left without access to
the most effective forms of contraception.
In Little Sisters and other cases on the docket both this term and next, the
Supreme Court's conservative majority is poised to reshape the meaning of
religious freedom in America. If the Supreme Court strikes down the ACA's
religious accommodation, it will be casting aside centuries of history. As
the history of conscientious objector laws shows, religious accommodations
help, not harm, religious liberty. Religious accommodations, like those
contained in the Affordable Care Act, ensure, as the Rev. Francis Alison
explained more than 250 years ago, that "all should have a free use of their
religion, but so as not on that score to burden or oppress others."