Freedom of religion and the contraceptive mandate (Missouri court case)

In the case of O’Brien v. US Department of Health and Human Services (go here for an analysis that links to the actual judgment), a judge of the United States District Court for the Eastern District of Missouri has upheld the so-called contraceptive mandate in its application to a secular mining company controlled (and apparently owned) by a practising Catholic, Mr O’Brien.

The challenged federal provision requires employers to provide group health plans for their employees, with content conforming to regulatory guidelines that (among other things) require coverage of the cost of contraception. The plaintiffs, Mr O’Brien and his company, argued that this was in breach of (among various other provisions) the US Constitution’s First Amendment. In particular, the main First Amendment argument was that the provision impinged on Mr O’Brien’s free exercise of his religion, which, he argued, includes running his business along Catholic lines. It was also argued to impinge on the free exercise of religion by the company itself.

I submit this much should, in principle, have been straightforward. The provision is 1. a neutral law (its purpose or object is not the persecution or imposition of a religious viewpoint, and nor can this be seen as somehow being its main effect) of 2. general applicability (it applies to the generality of employers, subject to some specific exemptions). Based on principled reasoning, philosophical theory going back at least to John Locke, and Supreme Court precedent, this should be enough to uphold the law against First Amendment review. Freedom of religion requires that the state not persecute disliked religions or impose, or endorse, a favoured religion, but there was no persecution here. The mining company was simply required to obey the same law as other employers. However annoying or inconvenient that might be, it is not religious persecution.

Nor was it establishment of religion. No religion was imposed or endorsed, or anything of the kind, though the plaintiffs attempted to argue that the provision was impermissibly entangled with religion, insofar as strictly religious employers were exempt – which meant that the state had had to draft criteria as to which these would be. Thus, in a sense, the state was playing favourites. I hope it is plain that this argument lacks merit. At the very least, it flies in the face of a large body of American constitutional jurisprudence. To nail the point down completely would require a close look at the criteria used, and this would take me away from what I see as the crucial issue arising from the case. Suffice to say that the court considered the criteria to be logical, and I agree.

In the upshot, the court had little trouble disposing of the First Amendment challenge (a freedom of speech argument was also run, but this need not detain us).

If it is relevant, we might add to the paragraphs above that no one is actually required by her religion (or at least by Catholicism) to run a mining company, or any sort of company at all. The law might make it less convenient for some people to do so, but that is another question.

Moreover, it is not as if this law somehow impinged on the core services and operations of a church or similar body, such as by controlling who can and cannot be made a priest. Indeed, as I’ve noted above, strictly religious employers were exempt from the law.

However, I’d prefer to leave the freedom of religion considerations on the basis that there simply was no state imposition or even endorsement of a religion, and no persecution of any religion. For further discussion, at some considerable length, of how all this relates to religious freedom, I refer you to my book, Freedom of Religion and the Secular State .

So far, so good. These American cases get complicated, however, partly because they are decided not only under the First Amendment but also under the Religious Freedom Restoration Act (RFRA). Back in the 1990s this was struck down in its application to state laws, but it still affects laws at the federal level.

RFRA empowers the courts to craft religious exemptions from legislation, even where the law concerned would not breach the First Amendment. In my opinion, this statute should never have been enacted and relies on a bogus concept of religious freedom. It enables laws to be struck down, at least in some of their specific applications, even though nothing like an imposition, endorsement, persecution, etc., of religion is discernible. That, in fact, means that judges are entrusted with the task of deciding whether or not to grant the privilege of an exemption from a law that is, ex hypothesi, religiously neutral and generally applicable. To quote from the judgment:

The Religious Freedom Restoration Act … forbids government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Thus, the court had to consider whether the contraceptive mandate substantially burdened a person’s exercise of religion. This further raised the question of whether the company was a person capable of exercising a religion, but the court ultimately did not need to decide that issue. Instead, it held that the case could not succeed even if the point were decided in favour of the company.

The essence of the case is that any burden on religious exercise, applying to either Mr O’Brien or the company, was not “substantial” within the meaning of the RFRA. Any burden was too slight and indirect to count as substantial – e.g. no one was actually required to use contraception. The requirement was merely that a benefit be provided to employees that they could utilise, if they wished, for obtaining and using contraceptives (something that they could have done anyway out of their wages – the benefit simply made it easier for them).

While this outcome is defensible, some sort of defence could also have been given if the court had decided the other way on the “substantial burden” point. In that case, it would then have been a matter of judgment just how “compelling” was the government interest in availability of contraception, and whether some less restrictive means was available to pursue it. In practice, once a substantial burden is found and the compelling state interest test is consequently applied, it becomes very unlikely that a court will uphold the challenged law.

Although I welcome the outcome of this case, I expect to see it appealed, and I’m not confident that other, similar, cases will be decided in the same way when they are determined by courts in other jurisdictions. I am not totally opposed to exemptions from neutral laws of general application, but I submit that they should be rare and should not be handed out by the courts. They should be issues for the legislature when it balances the interests of affected parties in the process of crafting and enacting legislation. Note that any exemption partly defeats the purpose of the law, and some exemptions shift an additional burden onto other parties that are not made exempt.

The courts should be making findings on such issues as whether the state has acted to endorse or impose a religious viewpoint, or to persecute one … or whether the state has merely enacted a neutral law of general application, with some secular and non-persecutorial purpose. In the latter case, there should be no further issue for the courts as to whether some side effect on religion amounts to a “substantial burden”. Or so I submit. At least we can hope, based on O’Brien v. US Department of Health and Human Services, that a substantial burden, in the legal meaning of that term, won’t be found lightly by the American courts.

[My Amazon author page.]

  1. Where do we draw a line? Could we mandate that all businesses of a certain type remain open on Saturday? That all animals be rendered unconscious before butchering? There is no religious necessity to own a business — much less a meat processing plant. See how the state can slowly prohibit certain people from participating in society? Suspiciously close to the Nuremberg laws, I’m afraid.

  2. Your articles states you “submit” a number of views, but it is hard for me to find the rationale. Perhaps I need to read the book, but I am not sure what you are saying from the article here.

    We are all aware of he legal tests under the First Amendment and the statutory language of the RFRA. They are what they are. I understand that, for some reason, you favor the restrictive test of the First Amendment, and dislike the RFRA.
    But what are the social or ethical considerations in this and similar cases that support your conclusions?

    The court is technically correct in saying that no one needs to exercise the benefit. But that doesn’t seem to be the point here. The Catholic Church is deadly serious about opposing contraception: it is a mortal sin, and allegedly the root of much immorality. The employer’s positions (leave aside for the moment corporate issues) is that, IF the benefit is exercise, the employer has effectively endorsed he practice, against his or her conscience. It is done in his or her name. The court is engaging in sophistry. The benefit exists to be utilized. To say it doesn’t have to be utilized is just dodging the question. These sorts obviously irrelevant distinctions make me wonder why we countenance judges reasoning like five year olds.

    I don’t know whether this concern of conscience is a “substantial” burden, but I understand the objection as genuine. The government’s interest in having contraception covered, I believe, is in the public interest in encouraging preventative care. I doubt that the government’s interest is very strong, frankly – the few women who would be denied coverage would pay for it out of pocket, and there would be few if any ultimate costs to the health care system from the one exemption. And so, my broader question is: why should the employer’s freedom of conscience be burdened in the name of a virtually non-existent governmental interest?

  3. Look at it this way:

    I would say that a school prayer is a bad idea, in part because it puts pressure on kids to deny their beliefs, or endorse beliefs that aren’t their own, or feel excluded.

    The feelings of the employer here are similar. They have some value.

  4. It seems to me that having Employer X subsidize a healthcare program which provides the possibility of dispensing contraceptives to its beneficiaries (those employed by Employer X) and might therefore violate Employer X’s religious objections to the use of contraceptives is similar to the employee simply taking their wages and purchasing contraceptives themselves.

    The healthcare program seems, in this case, even less of an affront to Employer X’s religious sensibilities than the thought that the employee might be purchasing contraceptives because with the healthcare program, Employer X is further removed in the causal chain from the possible use of contraceptives.

    Situation 1) Employer pays wages to employee. Employee takes wages and purchases contraceptives. Employee uses contraceptives.

    Situation 2) Employer pays wages to employee while enrolling employee in healthcare program with the option of subsidizing cost of contraceptives. Employee actively interacts with healthcare provider and requests subsidy on contraceptives. Employee uses contraceptives.

    At worst, there seems to be a similar number of “links in the chain” in one as in the other. At worst, there are more “links” in S2 and in S1 and therefore the Employer X is further insulated from direct connection to the use of contraceptives.

  5. Jamie Farren:

    I don’t think counting steps is the way to analyze it. Look at it this way:

    Employer currently has a choice between plans that cover and do not cover contraception. Employer later will have the choice between plans that cover contraception and discontinuing insurance for employess.

    The employer, by having the freedom to choose among health insurance plans, influences the employee’s decisions off the job.

  6. Blackford: “I am not totally opposed to exemptions from neutral laws of general application, but I submit that they should be rare and should not be handed out by the courts. They should be issues for the legislature when it balances the interests of affected parties in the process of crafting and enacting legislation.”

    In this particular case, however, a third thing happened. A piece of legislation was passed which required health insurance plans to cover preventative medicine (wellness care) for free. The disputed mandate was then introduced at the point of regulatory implementation of the legislation (hence the “HHS” mandate).

    In other words the contraception mandate and possible issues of religious burden were not considered by the legislature, which seems to have been unaware of potential needs for religious exemptions (after all, who could object to wellness care or preventative medicine? — but the Catholic bishops have argued, among other things, that pregnancy is not an illness and therefore contraception is not preventative medicine…)

  7. The Catholic plaintiffs object to all contraceptives, the evangelicals to methods that induce what they call abortion.

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