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Politico: Past Cases on Religious Exemptions Could Signal Uphill Fight for Contraceptive Access

Politico: Past Cases on Religious Exemptions Could Signal Uphill Fight for Contraceptive Access

January 6, 2014 — The Supreme Court justices' rulings on past cases involving religious exemptions suggest the Obama administration could face an uphill battle in defending the federal contraceptive coverage rules, Politico reports.

According to Politico, legal experts said the combination of legal challenges from for-profit companies and not-for-profit religiously affiliated organizations "could recreate a broad left-right coalition" the justices formed in previous cases.

So far, the high court is preparing to hear two cases testing the contraceptive coverage rules (Gerstein, Politico, 1/6). The rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and religiously affiliated not-for-profits are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Private companies are not eligible for an exemption or accommodation (Women's Health Policy Report, 1/3).

In November, the Supreme Court announced it would hear challenges to the rules from arts-and-crafts retail chain Hobby Lobby and cabinet maker Conestoga Wood Specialties, which both contend the rules go against the personal religious beliefs of the companies' owners and violate the 1993 Religious Freedom Restoration Act (PL 103-141) (Women's Health Policy Report, 11/26/13).

In a separate case, Supreme Court Justice Sonia Sotomayor last week granted a temporary injunction against the rules in a class-action suit filed on behalf of the Little Sisters of the Poor Home for the Aged of Colorado and several other not-for-profit religiously affiliated organizations. The court could opt to extend or lift the injunction while the case proceeds in the lower courts (Women's Health Policy Report, 1/3).

Legal Experts Weigh In

Legal experts said the Supreme Court in these cases is likely to maintain a liberal-conservative coalition that emerged over the past decade in favor of religious rights when conflicts arise with government policies, according to Politico.

For example, the high court in 2006 ruled 8-0 in favor of a New Mexico church that wanted to use a banned hallucinogen as part of its religious ceremonies. In a 2013 case involving a Lutheran Church employee, the justices ruled 9-0 that the Constitution bars the government from enforcing employment laws on behalf of anyone whom a church considers a minister.

Michael Dorf, a professor at Cornell Law School, noted that some conservative justices, historically, "have not been sympathetic to religious exemptions from general laws." However, he added that Justice Antonin Scalia -- who in a 1990 opinion sided with the government in a freedom of religious exercise case -- has been more sympathetic to religious exemptions since the enactment of RFRA. "He thinks the Constitution doesn't require a religious exemption of its own force, but all of [the justices] seem perfectly happy to find exemptions based on RFRA," Dorf said.

Stanford Law School professor Michael McConnell, a former federal appeals judge who supports broad religious exemptions, noted that Justice Elena Kagan during her time as a White House policy adviser wrote an internal memo lambasting the California Supreme Court's narrow interpretation of RFRA, which he argued "does suggest she is not likely to accept the government's argument that for-profit businesses are categorically unable to raise a free-exercise claim."

However, other legal experts said that Justice Anthony Kennedy might be wary of allowing religious exemptions at the potential expense of subjecting certain employees to discrimination. Gretchen Borchelt of the National Women's Law Center said, "Opening the door to bosses ending birth control coverage could also open the door to ... ending other employee protections and open up discrimination against other classes of people justices like Justice Kennedy have shown they think deserve protection."

Dorf also noted the repercussions for other employers, adding, "The best chance the government has of winning is if they come up with a really good parade of horribles. ... Eventually you can't function in a modern economy if you have these kinds of exceptions" (Politico, 1/6).