Contraception and Religious Liberty

[published in the New York Times on Thursday, Oct. 4, 2012]

Leaders of the Roman Catholic Church, prominent Republicans and other social conservatives have spent the past year making inflammatory allegations that an Obama administration rule requiring employer health plans to cover birth control without a co-pay tramples on religious freedom. An important federal court decision issued Friday rejected that attack as without foundation.

Judge Carol Jackson of Federal District Court, a George H.W. Bush appointee, dismissed the lawsuit filed against the administration brought by a mining company and its owner, who said that providing contraceptive coverage in the company health plan violated his personal religious views.

[link to her decision is here:]

Judge Jackson, based in St. Louis, correctly pointed out that the rule exempts churches, mosques and other houses of worship. The mining company — a secular, for-profit employer — clearly does not qualify for that exemption or for the accommodation the administration is fashioning to relieve colleges, hospitals and other organizations with religious affiliations from having to provide contraceptive coverage directly, by putting the burden on insurance companies. Her legal analysis, however, applies broadly, providing a useful framework for assessing claims by varied religious objectors.

The plaintiffs argued that the contraception mandate violates the Religious Freedom Restoration Act, a 1993 law that prohibits the federal government from taking actions that “substantially burden a person’s exercise of religion” unless that action advances a compelling government interest and is the “least restrictive means” of achieving it.

Judge Jackson said she did not have to address whether the act’s strict test should be applied in this case to a company because the contraception coverage requirement does not rise to the level of a “substantial” burden needed to trigger the law.

Any imposition on religion is trivial and remote, she explained. The health care coverage would offend the plaintiffs’ religious beliefs only if an employee “makes an independent decision to use the plan” to obtain contraceptives; and that independent decision is no different from an employee using part of a salary to pay for contraceptives, which clearly would not harm the employer’s right to free exercise of religion.

The 1993 statute “is not a means to force one’s religious practices upon others” and “does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own,” Judge Jackson wrote.

She also forcefully dismissed the claim that the contraceptive coverage requirement violates the First Amendment’s prohibition against the establishment of religion. Her ruling accurately said the regulation is a “neutral” attempt to expand women’s access to health care and combat gender bias, and applies equally to all denominations. Under legal precedents, the First Amendment does not exempt individuals or entities from complying with neutral laws of general applicability based on a religious objection, however sincere.

Judge Jackson’s powerful ruling is a victory for women and religious freedom. The many other courts hearing similar lawsuits by companies, individuals and groups with religious affiliations should follow her approach.