Legal experts discuss possible challenges to Obama administration mandate requiring contraception coverage

Lisa Johnston | lisajohnston@archstl.org
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Is the next step drafting Quakers?

A hypothetical question, certainly, since the military draft is currently not in force. But if Congress would pass a law to authorize the draft and the president of the United States signed that bill into law, the religious exemption for conscientious objectors could be a thing of the past in light of the 1990 U.S. Supreme Court decision on Employment Division of Human Resources vs. Smith -- a decision the average person is not familiar with and which was written by Justice Antonin Scalia, a Catholic and a jurist viewed as conservative.

This is at the heart of the federal health care mandate of the Obama administration, which requires that all employers of 50 or more people provide insurance coverage and all employees must have coverage for contraceptives, sterilization and abortion-inducing drugs, called "preventive services" -- with such a limited religious exemption that "Mother Teresa couldn't qualify," in the words of Missouri Catholic Conference general counsel Tyler McClay.

The most recent directive on the mandate by President Obama on Feb. 10 switched the coverage requirement from the employer to the employer's insurance company. The U.S. bishops flatly called this "unacceptable." The bishops are seeking to "correct" the mandate and its lack of a proper religious exemption, in part by calling on Congress to pass the Respect for Rights of Conscience Bill, sponsored by U.S. Sen. Roy Blunt of Missouri, who has also offered it as amendment to other legislation in an attempt to pass the bill on the Senate floor. A vote on the bill was expected as early as this week, after the Senate returned from a February recess.

The Smith decision

Back to Employment Division of Human Resources vs. Smith. The Supreme Court decision ruled, 6 to 3, that a Native American church in Oregon could not use peyote in its religious ceremonies because use of peyote was illegal in Oregon. The Native American church challenged the law on the basis of free exercise of their religion, saying peyote was key to their religion.

Justice Scalia interpreted the free exercise clause of the First Amendment narrowly and sided against the Native American church, explained Alan Howard, professor of law at St. Louis University. Justice Scalia interpreted that clause to mean "if the law only targeted you, it would violate the free exercise clause. That's not what Oregon did."

The Oregon law targeted everybody. No one could use peyote in Oregon. The law was not passed in order to prevent the Native American church from using peyote in its religious ceremonies. So, Scalia decided, it wasn't a matter of free exercise of religion because the law applied to everyone.

"Four justices disagreed with him," Howard said, explaining that Justice Sandra Day O'Connor, while concurring in the judgment, thought the Oregon law presumptively violated the free exercise rights of the Native American church "but in the end concluded that Oregon had refuted the presumption of unconstitutionality ... (with) a compelling interest in support of its anti-peyote law." The three dissenting justices and O'Connor "would read this free exercise clause more broadly, to in affect allow this church to have a constitutional exception, unless the government can come up with a compelling reason to not grant this exception. They were the minority."

Howard said, "If I were on the court, I would have agreed with the minority. In three or four cases before Smith, courts granted religious conscience exceptions and the Supreme Court upheld them," but Scalia said that those decisions were really about the freedom of speech right in the First Amendment, not the free exercise of religion.

Substantial obstacle

The Smith decision has never been overruled, Howard said. If the Health and Human Services contraception mandate of the Affordable Care Act is challenged before the Supreme Court, "with the makeup of the court today, I have no idea what they would do. I have no idea what Justice Scalia himself would do ..."

But Howard called the Smith opinion "a pretty substantial obstacle to the Catholic Church and other religions' opinion that the mandate violates religious freedom."

The federal government may indeed have the authority to carry out the mandate, said Charles C. Haynes, senior scholar of the First Amendment Center and director of the Religious Freedom Education Project at the Newseum in Washington, D.C.

"Unfortunately, in my view, the Supreme Court has seriously weakened the protections of the free exercise clause since its decision in Employment Division vs. Smith (1990). Challenges to a government regulation that burdens free exercise of religion are now less likely to prevail. The Religious Freedom Restoration Act (1993), however, (which says the government cannot pass a law that substantially burdens religious practice) still applies to the federal government -- and a challenge to this regulation under that law may have some likelihood of success."

Way too narrow

Because The HHS mandate's religious exception limits religious employers to, among other restrictions, employing and serving primarily "persons who share the same religious tenets of the organization," Catholic hospitals, schools, charities and outreach centers would be excluded as non-religious employers.

"This (exemption) is ridiculously narrow," said McClay, the MCC's general counsel.

Haynes, of the First Amendment Center, said, "What makes this situation difficult, of course, is that religiously affiliated institutions serve the public, hire outside their faith, and receive some government funding. That means the government has to balance the right of employees to receive health care with the religious-liberty rights of the institution. The effort to find a way to accomplish both interests should be made up front -- something that was not done in this case."

Reason to hope

McClay and the MCC are more hopeful of the outcome of a court challenge to the mandate.

"The drug Ella (a contraceptive drug included in the HHS ruling) has been shown .... as an abortificient and can be given up to five days after intercourse, so it can clearly (have) an abortion effect ... which brings abortion into the mix of this whole discussion. Legally that may not have much impact, but morally and socially you are now imposing on religious people that they must offer abortion-inducing drugs," McClay said.

"The Smith case said a neutral law of general applicability can infringe on a religious right if the law only incidentally infringes on religious liberty, like a general law prohibiting the use of peyote. This is not incidental. You are talking about a mandate that requires people of faith to do something they find morally objectionable, an infringement on religious liberty that results from the law itself. ... I think the judges will look at this with a higher level of scrutiny," he said.

Strong arguments can be made under the Religious Freedom Restoration Act that this mandate violates the prohibition that "government cannot pass a law that substantially burdens religious practice."

"Is it a slam dunk? No. But I think it's a much stronger case than you would otherwise have," McClay said.

Other legal remedies include passing new legislation to override the mandate, such as Blunt's Respect for the Rights of Conscience Bill, and "express our objection at the polls," McClay said.

"This is a fundamental religious liberty issue. It's not about access to contraception. It's about the right of the Church to operate in the public square, provide services to the poor and needy and still maintain the integrity of its faith tradition.And this is true not just for Catholic but every faith tradition."

Back to the Quakers

Carrying the Smith to decision to its logical outcome, if a law to reinstate the draft were not written to specifically target Quakers or other religious conscientious objectors, "I think logically it would be harder for them to justify an exemption under the free exercise clause," said Howard. "A Quaker could get drafted, unless Smith won't be applied as broadly as it was written, and time will tell."

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