EDITORIAL
The Contraception Battle
By THE EDITORIAL BOARD
Published: July 1, 2013 579 Comments
Last week saw two major developments in the legal and political battle over the Obama administration’s sound decision to require most employers to provide free insurance coverage of contraceptivesfor women under the new health care law — one of them positive and the other a blow to the mandate and to religious liberty.
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The contraceptive coverage is an important advance in public health. Standing up to resistance from religious organizations, the Obama administration issued a final, simplified rule on Friday that allows houses of worship to exclude contraceptive coverage from their health plans for employees and their dependents. Other nonprofit religious and church-affiliated organizations like hospitals, universities and charities that object to contraceptive coverage on religious grounds will not have to contract, arrange or pay for the coverage. Instead, insurance companies or third-party administrators will have to arrange separate no-payment plans for contraceptive services.
Details of how this will work remain to be ironed out. But the administration has gone further than fairness or the First Amendment require to reach a compromise that respects the concerns of some religious entities without sacrificing an employee’s right to make her own decisions regarding contraceptives and not to conform to the religious beliefs of her employer.
Unfortunately, that vital principle of individual religious liberty was lost on the United States Court of Appeals for the 10th Circuit, in Denver. In a ruling issued on Thursday, it bought the argument that requiring the health plan of a private for-profit employer to cover birth control without a co-pay violated the employer’s freedom.
The case was brought by the owners of Hobby Lobby, a craft store chain that describes itself as “a faith-based company.” The First Amendment does not exempt religious entities from complying with neutral laws of general applicability, like the contraceptive mandate, much less private profit-making corporations. Yet, in an en banc ruling, the appellate court blocked the government from imposing fines on Hobby Lobby for not complying and allowed its challenge to the mandate to proceed, finding merit in its religious freedom claim.
Hobby Lobby argued that the contraception mandate violates the Religious Freedom Restoration Act, a 1993 federal statute that bars 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. The mandate’s promotion of women’s health and autonomy is plainly a compelling interest.
But the court should never have reached that question. Contrary to the majority opinion, a corporation like Hobby Lobby is plainly not a “person” covered by the Restoration Act. In any case, the contraceptive rule still leaves the company’s owners free to rail about the different forms of birth control to which they object and to try to convince employees not to use them. As the Justice Department cogently argued, the burden imposed on any religion is trivial in allowing employees to make their own independent decisions to obtain free contraceptives.
Marci Hamilton, a professor at Cardozo School of Law and an expert on the Restoration Act, rightly called the 10th Circuit’s interpretation of the law “a fantasy” that badly undermines rules forbidding corporations from discriminating on the basis of religion.
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