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NYT Op-Ed: Possible SCOTUS Review of Contraceptive Coverage Rules Accommodation Marks 'Moment of Truth'

NYT Op-Ed: Possible SCOTUS Review of Contraceptive Coverage Rules Accommodation Marks 'Moment of Truth'

October 29, 2015 — In a New York Times opinion piece, columnist Linda Greenhouse analyzes a decision by the 8th U.S. Circuit Court of Appeals against the federal contraceptive coverage rules' accommodation for not-for-profits that hold themselves out as religious and oppose contraception, noting that it could have relevance as the Supreme Court considers whether to review any of seven other cases involving the accommodation.

She notes that while the 8th Circuit ruling "in favor of a Missouri nonprofit corporation, CNS International Ministries ... is not yet before the [Supreme Court] ... it's worth looking at in some detail, because its central premise is a not-implausible application of Justice [Samuel] Alito's Hobby Lobby opinion." She explains, "Writing for the three-judge panel, Judge Roger L. Wollman said that the question was not whether the ministry or its affiliated school 'have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage,'" with Wollman adding, "'Their affirmative answer to that question is not for us to dispute.'"

Noting that CNS and Hobby Lobby's beliefs about certain forms of contraception are scientifically incorrect, Greenhouse writes, "Beliefs are relevant in a public policy context only when they are invoked to impinge on the rights of others." She adds, "It's striking that neither the Hobby Lobby majority nor the Eighth Circuit panel even inquired into the facts, simply deferring to the sincerity of the plaintiffs' belief."

Greenhouse explains that these cases "invoke a federal statute, the Religious Freedom Restoration Act [PL 103-141]," under which "a federal law that imposes a 'substantial burden' on religious practice must serve a 'compelling' government interest and do so by the most narrowly tailored means available." However, according to Greenhouse, "the Eight Circuit's decision and ... the majority's hands-off stance in Hobby Lobby" seem to imply that a substantial burden is "anything that a religious plaintiff says it is."

Meanwhile, "In the appeal the Supreme Court is most likely to agree to hear, Roman Catholic Archbishop of Washington v. Burwell, the plaintiffs maintain that by offering to transfer the obligation from the employers to their insurers" under the accommodation, "the government proposes to 'hijack' and 'conscript' their health plans into service to the contraception mandate."

However, she notes, "But consider that under the rules of the available accommodation, all relationship between the employer and the coverage is severed: The employer has no obligation 'to contract, arrange, pay, or refer for contraceptive coverage,' and need not even notify its employees that coverage is separately available through the insurer." She adds, "If even this is unacceptable, Solicitor General Donald B. Verrilli Jr. tells the court in the government's brief, the plaintiffs' objections 'would appear to apply to any system in which their employees gain an entitlement to contraceptive coverage from third parties.'" She writes, "Forgive me for wondering whether the accommodation at hand would have been so vigorously resisted had any president other than Barack Obama been in office -- or had the target of the objection not been women presuming to have sex without procreation."

Greenhouse continues, "It seems to me that [Chief Justice John Roberts'] Court, having worked assiduously over the last 10 years to elevate the First Amendment's Free Exercise Clause at the expense of its First Amendment twin, the Establishment Clause, is now approaching a moment of truth." According to Greenhouse, "To accept the claims being made here is to plunge into a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents to the benefits designed by a secular government to apply to all."

RFRA "was embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities, not a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society," Greenhouse concludes (Greenhouse, New York Times, 10/29).