The Contraception Mandate Marches On
by Samuel Livingston and Mark Silk
Speaking with reporters in December of 1993, President Clinton criticized the news media for paying little attention to the Religious Freedom Restoration Act (RFRA), which he had signed into law the previous month. The law, he said, “affected the lives of people in a profound way.”
Two decades later, RFRA is anything but overlooked. This year it took center stage in the Supreme Court’s most conspicuous case, Burwell v. Hobby Lobby Stores, and next year it may well do the same.
The question before the court in Hobby Lobby was whether the religious liberty granted by RFRA was sufficient to permit a for-profit company to exclude from its employee insurance policy the comprehensive contraception coverage mandated by the Affordable Care Act (ACA). The court’s answer amounted to “Yes, but.”
It was yes to the extent that a “closely held” for-profit company that demonstrated some measure of religious commitment could decline to provide the coverage. But this was not because the government couldn’t require the company’s female employees to be covered. It was because the government did not use “the least restrictive means” to advance its “compelling interest” in doing so.
In other words, the court allowed for the possibility that a woman’s right to contraceptive coverage might trump the right of a religious for-profit company—and possibly a religious non-profit as well—to deny it to them.
The story of how these two rights came into being and into conflict is as complicated as it is little known. Let’s begin with RFRA.
As of 1980s, the Supreme Court required claims that a law violated the free exercise of religion to be judged according to “strict scrutiny”—that is, the government had to prove that the law in question advanced a compelling state interest in a narrowly tailored way and by the least restrictive means. To be sure, the court was generous in deferring to government assertions of compelling interest. In 1986, for example, it denied a Jewish Air Force officer’s right to wear a yarmulke on the grounds that the military had a compelling interest in maintaining its dress code. Nevertheless, the standard guaranteed serious judicial attention to anyone claiming impairment of religious liberty by a legal obligation or restriction.
Then, in 1990, the Supreme Court did away with the guarantee. The case in question, Employment Division v. Smith, involved two members of the Native American Church whom the Oregon Department of Human Resources fired as drug counselors for using peyote as a sacrament. In a 5-4 decision written by Justice Antonin Scalia, the court ruled that the state’s prohibition of drug use by its drug counselors could not be challenged as a violation of the First Amendment’s Free Exercise clause because it was a “neutral law of general applicability”—i.e., a law that was not meant to restrict a religious practice and applied to everyone.
Scalia did not deny that neutral laws of general applicability might intrude on religious liberty. But rather than “courting anarchy” by letting any and all religious objectors gain exemptions from laws if the government couldn’t prove a bona fide compelling interest, he wanted them to take their case to the people or their elected representatives. Indeed, it didn’t take long for both the State of Oregon and the federal government to pass laws protecting Native Americans from being sanctioned for the sacramental use of peyote.
Nevertheless, Smith provoked consternation throughout the community of church-state experts associated with American religious bodies. By giving major responsibility for enforcing the First Amendment’s guarantee of free exercise to majoritarian decision-making, the court, they claimed, had all but gutted a fundamental constitutional right.
So in the fall of 1993, after a remarkably effective lobbying campaign by an unprecedented coalition of religious and civil liberties groups, a nearly unanimous Congress passed the Religious Freedom Restoration Act, which “restored” religious freedom by requiring the Supreme Court to return to strict scrutiny when considering Free Exercise cases.
As President Clinton said in his signing statement, “[T]his act reverses the Supreme Court’s decision Employment Division against Smith and reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the Founders of this Nation than the Supreme Court decision.”
The court itself, however, did not take kindly to the other branches of the federal government telling it how to apply the Constitution. In Boerne v. Flores (1997), a case challenging Texas’ historical preservation law, the court struck down RFRA as an unconstitutional use of Congress’ enforcement powers. Writing for a 6-3 majority, Justice Anthony Kennedy declared that only the court itself could define a substantive constitutional right.
But because Boerne dealt with a state law, there remained the possibility that RFRA would be allowed to stand with respect to the federal government—and so it was. In Gonzales v. O Centro Espirita Beneficente (2006), a drug use case similar to Smith, the Supreme Court unanimously decided that RFRA protected the right of a small religious group to imbibe tea made from an Amazonian plant containing an hallucinogen regulated under Schedule I of the Controlled Substances Act.
No longer was it courting anarchy to permit religious objectors to challenge a neutral law of general applicability, at least so long as that law was federal. Although the court didn’t say as much, RFRA was now transformed from an instruction on how the judiciary should apply the Constitution into a statutory limitation on federal laws.
And thus it was that RFRA became available to challenge, as a violation of religious liberty, a neutral law of general applicability: the Affordable Care Act’s contraception mandate.
And the mandate itself? It also expresses a statutory right whose story begins in the fall of 1993.
That’s when the Health Security Act, the Clinton Administration’s ambitious effort to ensure comprehensive health coverage for all Americans, was introduced in Congress. The bill included family planning services and contraceptive “devices” but, despite covering prescription drugs generally, not contraceptive drugs. This omission was noted by advocacy groups, who argued that equal treatment of women demanded that contraceptive drugs be part of any comprehensive prescription drug coverage plan.
Although the Health Security Act failed to pass Congress, it led to increased federal regulatory control over health insurance—for example, through the Health Insurance Portability and Accountability Act of 1996, which created a precedent for federal mandates to include specific types of benefits.
Meanwhile, the principle of requiring contraceptive drugs to be included in prescription drug plans began to take hold. It was advanced in the Equity in Prescription Insurance and Coverage Act of 1997, which would have required private as well as government-sponsored plans to cover all FDA-approved contraceptive drugs.
Although that bill did not become law, in 1998 Congress sent ahead and mandated prescription contraceptive coverage for the 1.2 million women covered by plans that participated in the Federal Employees Health Benefits Program. Exceptions were allowed for plan sponsors with religious objections to the coverage.
Then, in December of 2000, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that the failure of employers to include contraceptives in prescription drug coverage constituted sex discrimination under Title VII of the 1964 Civil Rights Act, which prohibits discrimination in the workplace. Pro-coverage activists immediately went to court to enforce the ruling.
In Seattle, Jennifer Erickson filed a class action on behalf of herself and the other female employees covered by the comprehensive prescription drug benefit plan of the Bartell Drug Company. In 2001, U.S. District Judge Robert S. Lasnik upheld the EEOC ruling, writing in Erickson v. Bartell Drug Co., “Although the plan covers almost all drugs and devices used by men, the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate healthcare need uncovered.”
The decision, which was never appealed, technically applied only to the case at hand, but it led a large number of employers to add contraceptive drugs to their insurance coverage. And by 2007, 27 states had jumped on the bandwagon, mandating contraceptive coverage for all prescription drug plans under their jurisdiction.
The state mandates included provisions for religious exemptions ranging from California’s and New York’s, which effectively limited them to churches and similar religious bodies, to Illinois’, which permitted secular for-profit companies to apply.
In 2004 and 2006, the California and New York mandates were challenged in court by Catholic Charities and other religious non-profits under the Free Exercise and Establishment clauses of the First Amendment.
In each case, the state’s highest court ruled against the plaintiffs, upholding the mandate and the exemption in question. In each case, the court made it clear that these were, as Smith prescribed, neutral laws of general applicability and therefore proof against challenge on free exercise grounds. Because they were state laws, the Religious Freedom Restoration Act did not apply.
Many of the religious non-profits were nevertheless able to find a way to evade the mandate: by self-insuring.
Under the Employee Retirement Income Security Act of 1974 (ERISA), states cannot regulate employment-based insurance plans that establish self-insurance trusts to cover the costs of coverage. The point is to enable employers to eliminate the threat of conflicting or inconsistent state regulation.
To be sure, not all employers can avail themselves of this opportunity, since a substantial number of employees is necessary in order to create a big enough pool of money to cover claims. Nevertheless, half of all Americans who have health insurance through their employers are currently covered by ERISA trusts.
For sufficiently large employers opposed to covering one or more FDA-approved contraceptives—religious non-profits for the most part—the ERISA loophole offered a way out. But although many proceeded to self-insure in order to avoid state contraception mandates, the loophole may actually be illusory.
That’s because of Shaw v. Delta Air Lines (1983), a case involving a disability benefits plan that excluded disabilities related to pregnancy. New York State sought to make Delta cover pregnancy disabilities, as required by its human rights law.
In a unanimous decision, the Supreme Court decided that, under a 1978 amendment to Title VII called the Pregnancy Discrimination Act (PDA), pregnancy had to be treated like any other disability. In permitting enforcement of the New York law, the court held that ERISA preemption did not apply to those state laws that were consistent with and promoted the goals of Title VII. The justices didn’t want companies to use ERISA to avoid state laws ensuring employees’ civil rights—which is exactly what the religious non-profits were doing.
But then, in 2007, the Eighth Circuit Court of Appeals held in In re Union Pacific Railroad Employment Practices Litigation that a company which failed to include contraceptive services for women in its comprehensive drug plan was not in violation of Title VII. Ruling that the PDA had nothing to do with contraception, the court found that Union Pacific actually treated the sexes identically with respect to contraception coverage.
The ruling applied only to the seven states of the Eight Circuit (Arkansas, Missouri, Iowa, Nebraska, Minnesota, South Dakota, and North Dakota), however, and in 2009 the EEOC informed Belmont Abbey College, a small private Catholic institution in North Carolina, that it was in violation of Title VII (amended by the PDA) because its employee benefits plan did not provide contraceptive coverage.
In any event, it was all but inevitable that the Obama Administration would decide to mandate contraceptive coverage for women as part of the Affordable Care Act. This was not only because of the legal uncertainty regarding ERISA preemption and the reach of the PDA. As a matter of public policy, most states and the federal government had already acted to uphold the principle that gender equality required such coverage. And as part of the ACA, Congress passed and the president signed into law the Women’s Health Amendment, which created a special category of free comprehensive preventive services specific to women’s health.
The only question had to do with the extent to which religious objectors would be allowed to opt out. Initially, the administration—following the policies of California and New York—only permitted religious bodies like churches to obtain exemptions. It was assumed that, given their strictly religious identities, virtually all employees would be members of those bodies who were committed to their principles.
After vigorous objections from Catholic and evangelical leaders that the exemption was too limited, the administration eventually extended an “accommodation” to religious non-profits such as the University of Notre Dame and the Little Sisters of the Poor, an order of nuns that operates 30 nursing homes around the country.
By filling out a government form stating their religious objections and sending it to their insurer (or the insurance company administering their self-insurance trust), such non-profits could exclude contraception coverage from their plans. The insurance company would then have to provide the coverage itself, free of charge.
This mechanism for maintaining both the right of women to have comprehensive drug coverage and the right of religious non-profits not to provide it was rejected by a number of the non-profits, which went to court to claim that it would put them in a position of triggering the coverage in a way that violated their religious liberty.
This position was given short shrift by Judge Richard Posner of the Seventh Circuit Court of Appeals, which in February denied Notre Dame an injunction against having to comply with the mandate. Writing for the 2-1 majority, Posner declared, “What makes this case and others like it involving the contraception exemption and others like it paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming the exemption process itself imposes a substantial burden on their religious faiths.”
Hobby Lobby, of course, involved for-profit companies, which the ACA excluded from receiving even the kind of religious accommodation that the non-profits could obtain. The Supreme Court determined that, under some circumstances, for-profits were entitled to opt out of the mandate—and, in the process, set the stage for a showdown between the competing imperatives of RFRA-required religious liberty and Title VII-secured gender equity.
Writing for the 5-4 majority, Justice Samuel Alito assumed—but pointedly did not concede—that the government had a compelling interest in providing women with the full range of contraceptive services. To fail the RFRA test, it was enough that the ACA did not employ the least restrictive means to achieve it.
The government could simply provide the coverage out of its own pocket, Alito wrote, but that was not necessarily required. Readily available—and certainly less restrictive than forcing the companies to provide it—was the accommodation for non-profits.
Would that do the trick? Again, Alito kept the court’s options open: “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” he wrote.
The majority decision drew a sharp dissent from Justice Ruth Bader Ginsburg, who saw the religious liberty interests of the employers as insubstantial, and far outweighed by those of their employees. “The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents,” she wrote. “It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”
Between Alito and Ginsburg was Justice Anthony Kennedy, with a concurrence that showed why he has so often been the swing vote on the Roberts court.
The government, he wrote, did in fact have a compelling interest in providing contraceptive services: “There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”
He also declared that the arrangement for religious non-profits was indeed a valid means of assuring both the religious liberty right and the contraception coverage right: “In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”
A few days after handing down Hobby Lobby, the court granted the Little Sisters of the Poor and its fellow plaintiffs an injunction. Pending disposition of their case by the Tenth Circuit, the unsigned order allowed them to convey their religious objections to the Secretary of Health and Human Services rather than obtaining an accommodation by filling out and submitting the required government form to their insurance companies. But the order was not to be “construed as an expression of the Court’s views on the merits.”
The court will express its views on the merits soon, and probably next session. If Justice Kennedy holds to his careful balancing of religious liberty and gender equity imperatives, the non-profit accommodation—or a reasonable facsimile thereof—will turn out to pass the RFRA test.