Domestic, Healthcare, Judicial, Women's Rights — May 4, 2012 at 2:02 am

Obamacare’s Bitter Pill

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Illustrations by Louise McCune

Illustrations by Louise McCune

As Americans, there are certain ideals for which we stand, such as freedom, liberty, and justice. Instilled deep within our hearts, these values must be protected by Americans from government intrusion. The Supreme Court, protecting the liberties guaranteed in the Constitution, has ruled that religious institutions “act as critical buffers between the individual and the power of the State,” serving as a barrier against oppressive civil laws.

The recent Department of Health and Human Services (HHS) contraception coverage mandate is one of the most recent examples of intrusive government power. The mandate would require most health insurance plans issued by employers to cover preventive services for women, including contraception, without charging a co-payer a deductible. Though it narrowly allows for a religious exemption that is restricted only to houses of worship, this mandate would coerce other spiritual institutions into defying deeply held beliefs and advancing secular opinion. The First Amendment of the Constitution of the United States proclaims, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The American people are not only guaranteed freedom from a government administered by clergy, but also possess a right to religion free of politicians. Based on stare decisis, past Supreme Court decisions, and statutory law, enacting the HHS mandate and the recent compromise would violate expressed First Amendment rights; without augmenting the religious exception, the mandate remains unconstitutional.

Throughout the history of the United States, the federal government has habitually sought to safeguard religious liberty – except for when the Supreme Court historically reversed this precedent in 1990. In Employment Division v. Smith (1990), a group of Native Americans sued the state of Oregon on the grounds that a statute criminalizing the use of peyote violated their First Amendment rights. The Court ruled that religious exemption from general applicable laws is not required. While the Court stated that it valued the spiritual diversity of the nation, it maintained that it could not “afford the luxury of deeming preemptively invalid…every regulation of conduct that does not protect the highest order.” According to the Court, the fact that some laws would end up affecting religions is an “unavoidable consequence of democracy.” Agreeing with the dissent, Congress used its statutory authority to ensure that strict scrutiny is applied to cases of religious liberty, reinstating the Sherbert test, requirements for strict scrutiny drawn from the Court’s Sherbert v. Warner decision and the passage of the bipartisan Religious Freedom Restoration Act (RFRA) of 1993. Later in 1997, the Supreme Court ruled in City of Boerne v. Flores that the RFRA is applicable to federal institutions. Though strict scrutiny is also applied to race and gender, litigation concerning religion is unique – the courts only consider existing statues along with common law in cases of religious liberty. Today, the HHS mandate discounts law and precedent; the department applied the mandate to RFRA and defended it with Smith, an approach incompatible with the Supreme Court’s process of reviewing issues of religious liberty.

As expounded in RFRA, the government may place a burden on a person’s liberty if the state has a compelling interest in doing so and can do so in the least restrictive way possible. To decide that there is a compelling state interest, the Court often looks at the context and facts of a case, such as in Smith, where the Court considered and feared the slippery slope of offering immunity from laws on the grounds of “religious freedom.” Yet in the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. Equal Opportunity, in which a female employee sued the Hosanna-Tabor Lutheran Church on grounds of wrongful termination, claiming protection from the Civil Rights Act, the precedent from Smith was changed to focus instead on the specifics of any law possibly violating religious liberty, rather than context. Hosanna-Tabor abated the Smith precedent of applying context by saying that strict scrutiny still applies but precedence was weighted superior to the Sherbert test, dismissing context. The opinion showed the court’s willingness to rule on benchmark legislation and stare decisis, including historical precedent. For example, Chief Justice John Roberts’ opinion highlights the course of religious liberty to create a background for our Founders’ purposes in drafting the First Amendment. Because authoritative examples act as reason for decision at the Supreme Court, the same approach used in Hosanna-Tabor should be taken when analyzing the HHS mandate. For the current debate, it would be ideal to limit considerations to precedent. Though the Court undoubtedly accounts for history when deliberating on constitutionality, focusing on the most recent precedent would be the safest approach to examining issues of religious liberty because it would avoid excessive assumptions and would directly derive from the law as compared to the widely varying current political ideals.

The Court rightfully favored religious freedom when distinguishing between Smith and Hosanna-Tabor. The former ruled on an external, physical act, whereas the latter concerned “interference with an internal church decision that affects the faith and mission of the church itself.” The ruling in Hosanna-Tabor held that general laws are applicable to individual actions, but not to internal decisions of a church; the HHS mandate stops a segment of society from practicing certain religious beliefs by dictating that some activities are secular and others are spiritual. In referencing Kedroff v. Saint Nicholas (1952), the Supreme Court framed First Amendment protection of spiritual freedom as, “an independence from secular control or manipulation…power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” In accordance with this clause, manipulation of religious entities to offer contraception exceeds the government’s power. The decision in Corp. of Presiding Bishop v. Amos (1986) justified limiting secular control over religious liberty, detailing the effects of laical control as “a significant burden on religious organizations.”

HHS claims the mandate’s exemption, as it stands, is sufficiently broad, and that any further decrease in its restrictions would undermine its effectiveness. Yet, by excluding religious hospitals, schools, and charities, the mandate is in complete opposition to precedent; Hosanna-Tabor does not specify between institutions, but rather, uses “religious groups” and “religious organizations.” Because the mandate does not offer exemption for all religious organizations, it interferes with the organizations’ internal operations that are protected by the free-exercise clause, constituting a “substantial liability.”

The functions of a religious institution are not confined only to administrative affairs, but also those concerns that affect the body and administration belonging to the establishment, including insurance. Religious institutions, which tend to be non-profit organizations, operate in a similar fashion to businesses in that insurance is an external support; however, because employees are included in the polity of religious institutions, insurance is an internal matter. Coercing an ecclesiastical establishment into choosing an insurance policy intrudes on functional decisions. And when such a policy is inconsistent with a religious faith, it infringes on the Free Exercise clause in the Constitution. Additionally, in Smith, the Supreme Court alleged that expressing belief “often involves…the performance of (or abstention from) physical acts.” Preventing a religious institution from acting upon its own decisions about contraception allows the government to superintend an internal function, contrary to Hosanna-Tabor. The Court upheld that a religious group has the right to shape its faith and mission and that imposing an unwanted item violates the separation of church and state.

Another aspect of the Smith legacy was marginalized when the Supreme Court ruled in Gonzales v. UDV (2005) that religious exemptions are warranted for specific occasions. In the case, a religious sect claimed that a federal statute banning a specific drug used in religious ceremonies was an infringement of their First Amendment rights. The Court considered the government’s defense of the statute inconclusive because it failed to prove compelling interest. To prove a compelling interest the government must demonstrate that “less restrictive alternatives will be less effective” than the provision in question. According to the Court, the government cannot use the debated law to defend its constitutionality – Congress should not determine the efficacy of congressional evaluations themselves. Thus, the government’s decision to include a directive does not relieve its duty to adhere to the obligations under RFRA. HHS ignored its burden and enacted a mandate that does not further a compelling interest. According to Secretary of Health Kathleen Sebelius, contraception coverage is necessary for women’s health, yet as stated in Gonzalez, just because the government argues that a law or mandate is necessary is not a sufficient defense of its constitutionality. In Gonzalez, the Court included another burden under RFRA. As in Smith, it understood the necessity to preclude certain exceptions to general laws, but it also asserted that the duty of Congress under RFRA includes the burden of recognizing existing exemptions when drafting legislation. Because there were established exemptions in comparable legislation, the government should not have been able to exclude the religious group, the Brazilian church União do Vegetal. Congress must observe longstanding exemptions. The Federal Employee Health Benefits Program also allows for an exemption to plans with contraception “on the basis of religious beliefs.” The HHS mandate ignores these exceptions and, contrary to the Gonzalez opinion, subsumes a religious exemption inconsistent with those already in place.

In Gonzalez, the Court also found conflicting claims in the government’s defense of the contended statute. The defendants asserted that an exemption would prove detrimental to the law; granting impunity to one group would allow widespread invocation of religious objection. However, the act itself authorizes exemption by the Attorney General, and any exemption would be “consistent with the public health and safety” that the law attempts. For RFRA purposes, this is not a compelling argument. The Court overlooked general applicability in Gonzalez and instead scrutinized the claimed ramifications of granting special immunity. If an exemption would handicap the law as the government insisted, why would the law itself include the possibility of exemption? Similar to this case, the Department of Health alleges that contraception coverage is a compelling medical interest. Yet in a statement, the department stated that the current, narrow exemption does not “undermine the overall benefits” of contraception coverage. Drawn from Gonzalez, what must be appraised is the balance of potential harm to the government compared to irreparable harm to religious groups. The Department of Health cannot claim contraception is crucial and also allege that an exemption is not deleterious. Expanding the religious exclusion in the HHS mandate would only retain the status quo for those employed by such institutions; access to contraception would not be impeded and the goal would not be impinged. As in Gonzalez, the government cannot neglect the burden established by RFRA and must extend an exception where it allows for observance even if the statute has a paramount interest.

Despite the accession that a religious exemption does not obstruct the practice of the HHS mandate, the administration claims that expanding the exemption would “undermine the benefits” of coverage. In response, a compromise between the Obama administration and a few Catholic medical groups transferred the finance of contraceptives from employers within the narrow exclusion to the insurance companies. The government ignores the fact that religious institutions contract complimentary religious insurance companies, and that such insurers would be compelled to offer a policy in conflict with belief, infringing on First Amendment rights.

Yet suppose an insurer is nonreligious; here, the department evades precedent. In the Supreme Court case Flast v. Cohen (1968), the justices decided that federal taxpayers are not prohibited from suing the federal government over unconstitutional use of funds. The holding realized that an objector’s tax dollars, once “extracted and spent,” have supported in some way a policy inimical to dictating conscience. Flast‘s foundation of a connection, even indirectly, between a dissenter’s contribution and an association’s use of funds is notable. The compromise Obama reached in February suggests a similar unconstitutional finding – though Flast concerned the Establishment clause, whereas the current debate concerns the Free Exercise clause, the two convey complementary values. Spiritual institutions would be subsidizing a policy inconsistent with their convictions.

Supporters of the HHS mandate assert that an expanded religious exemption would undermine basic female rights, but there is no basic right or entitlement to contraception. In Eisenstadt v. Baird (1972), the Court’s ruled that it is the right of any individual, married or unmarried, “to be free from unwarranted government intrusion” in obtaining contraceptives. Though the opinion intimates a “right to” contraception, the Court declared a “right to obtain” and a “freedom from” inhibition by government. In Reed v. Reed (1971), the Court ruled in favor of a woman denied equal protection under its laws, declaring that state and federal statutes are only discriminatory if the unequal treatment is “simply because they are women.” Furthermore, exempting religious institutions would not obstruct women from acquiring contraceptive services, leaving the government free from choosing one side over another. According to Justice Sandra Day O’Connor, the “removal of government-imposed burdens on religious exercise is more likely to be perceived as an accommodation of the exercise of religion rather than as a government endorsement of religion.” The government, in other words, would not be placing a religious policy over female health, but would rather be protecting a constitutional freedom. The opinion in Griswold v. Connecticut (1965), which supported the Free Exercise clause, struck down laws prohibiting the sale of contraceptives and defended the principle that government cannot legislate in a way that invades protected freedoms. Among others, this includes the right to freely exercise one’s beliefs.

As Americans, we enjoy special rights and privileges that are unique in the world. Among them is the supremacy of the law. The hegemony of law over politics allows for our courts to protect the rights and liberties that are espoused by the Constitution and are congenial to our collective character. According to the Supreme Court, when deliberating on a case regarding a worthy subject such as female health, one is likely to forget that the “autonomy of religious groups…have often served as a shield against oppressive civil laws,” as stated in the Hosanna-Tabor concurrence. According to both common and statutory law, requiring universal contraception coverage is neither a compelling interest nor done in the least restrictive way; the HHS mandate, in its present form, with its narrow religious exemption, is unconstitutional. The citizenry of the United States has always stood to defend Americans’ religious freedom. By protecting religious institutions from secular coercion, the people and their laws can and should successfully protect this right once again.

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  • Linda

    great article