Thanks to some comments on an earlier post, I have learned that as many as twenty-eight states require insurance providers to include contraceptive coverage in the packages they offer. Twenty states offer some form of conscientious exemption from the requirement; eight–including (much to my dismay) my home state–do not. According to the pro-abortion Guttmacher Institute, Arizona’s recently-passed law, which exempts religious organizations, but not religiously motivated employers, is an example of an “expansive” exemption. Massachusetts offers an exemption limited to churches or “qualified church-controlled” organizations. California has a much narrower exemption, resembling the Obama Administration’s initial proposal (e.g., limiting exemptions to institutions whose purpose is to inculcate religious values and that primarily serve co-religionists).
This patchwork of state insurance regulations will likely continue to pose a problem, even if the lawsuits against the Obama Administration’s contraceptive mandate succeed. Consider the following possibility: Hobby Lobby wins its case against the HHS mandate, but the court grounds its judgment on the Religious Freedom Restoration Act, and not on the Free Exercise Clause. In that case, the federal government would be enjoined from requiring Hobby Lobby to provide contraceptive coverage, but none of the state laws requiring coverage would be affected.
It wouldn’t at all surprise me if RFRA were the basis of an eventual Supreme Court decision overturning the HHS mandate; it requires that laws restricting religious freedom to fulfill a “compelling state interest” and be the least restrictive means of achieving that interest. By contrast, current Supreme Court free exercise doctrine treats generally applicable laws much more permissively, looking askance largely at laws that seem explicitly aimed at restricting religious practices. From our point of view, the problem is that the Court has rejected the application of RFRA to state laws, enforcing it only against federal actions. Hence the Hobby Lobby possibility I mentioned above, with mandates affecting a variety of different kinds of faith-based organizations, depending upon the particular state laws. If I’m not mistaken, Colorado Christian University could, for example, win its case against HHS and still be required by state law to provide contraceptive coverage to its employees. And even if they were freed from the Obamacare mandate, a wide range of faith-based employers in California would remain subject to a state law that basically exempts only churches.
You get the picture.
There is likely still work to be done on the state level if religious organizations and religiously-motivated employers are to be able to enjoy the fruits of any judicial victory against the HHS mandate. I can imagine a number of different possibilities, ranging from a repeal of state laws at odds with newly religion-friendly federal insurance regulations to more generous exemptions, where they can be won. Of course, since we don’t know what the outcome of the current round of litigation will be, it is probably safest to operate as if everything depended upon the state legislature. Since we have had so much talk about the way in which the HHS mandate trenches upon religious freedom, it may well be a propitious time for the friends of faith-based organizations to ask their state legislatures to consider how their own state laws violate the consciences of employers.
January 3rd, 2013 | 4:32 pm
Joseph,
As a fellow Georgian, I am interested in hearing more about the lack of a conscientious exemption under Georgia law. Can you post a cite? Given the generally conservative bent of the entire state of Georgia outside the Atlanta perimeter, there is absolutely no reason why the General Assembly should not be able to address this issue if enough people raise a fuss.
January 3rd, 2013 | 8:15 pm
Abortion isn’t just a political issue; it can also be a religious one. In which case, forcing employers to pay for abortion-causing drugs violates their freedom and practice of religion, a Constitutional right.
If you agree, make your voice heard and exempt companies like Hobby Lobby from the healthcare mandate.
http://j.mp/ULnpUm
January 3rd, 2013 | 11:16 pm
. . . . forcing employers to pay for abortion-causing drugs violates their freedom and practice of religion, a Constitutional right.
Nick Miller,
Actually, one of the issues involved is whether a for-profit corporation has a First Amendment right to freedom of religion. As legal persons, corporations have some of the rights of natural persons (e.g., freedom of speech), but as I understand it, it’s an open question as to whether a corporation can practice religion, so it is an open question whether a corporation has a free exercise right.
January 4th, 2013 | 10:13 am
I don’t believe corporations have even some of the rights as persons. Corporate freedom of speech comes as an extension of the free speech of those who own the corporation (aka the shareholders).
A corporate ‘freedom of religion’ could only be freedom of shareholders to practice their religion…which they already have whether or not the business they own is incorporated. I don’t think you can mount a convincing case for freedom of religion violation from either the state or Federal health care laws.
January 4th, 2013 | 12:06 pm
First to the Hobby Lobby case, I would say the plaintiffs suffer one major problem among others, and that is a lack of standing. As the court has said with regards to standing in federal court. First, the plaintiff must have suffered an “injury in fact” an invasion of a legally protected interest which is (a) concrete and particularized, see id., and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’ Second, there must be a causal connection between the injury and the conduct complained of the injury has to be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.”Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”
January 4th, 2013 | 12:26 pm
Suppose I create a business whose purpose is to provide investors with a mutual fund that invests only in “pro-life” companies. The corporate mission statement cites religious teachings to that effect. It is a business (I aim to make a profit), but it has a particular faith-inspired and “ethical” purpose. Suppose, further, that the business is privately-held. It is an extension of the religious vocation of its owners.
I recognize that under current Supreme Court free exercise doctrine that virtually any generally applicable law would trump any conscientious claim associated with this business, though NOT under the Religious Freedom Restoration Act, which restores the pre-EMPLOYMENT DIVISION V. SMITH status quo ante.
Or am I simply not allowed to exercise my faith in the marketplace?
January 4th, 2013 | 12:54 pm
Suppose I create a business whose purpose is to provide investors with a mutual fund that invests only in “pro-life” companies.
Suppose you do, such mutual funds already exist. What does it have to do with the health care law or state mandates? You have a staff of say 20 or so workers who take people’s deposits and buy stocks in various companies. Before you buy a hospital chain you ask if they do abortions. If they do you don’t buy them.
How is this any different than a non-incorporated financial advisor simply telling customers “Don’t buy stock in XYZ, they are a hospital chain that does abortions but ABC does not”? If this is you followng your religious beliefs you’re free to do so either as a corporation or individual business.
January 4th, 2013 | 1:32 pm
Under your interpretation of the law (at least what seems to be your interpretation of the law), I am obliged to provide for my employees something (a certain kind of health insurance) that is anathema to the mission of my business.
January 4th, 2013 | 1:58 pm
By something you mean pay. Because if you pay your employees today you are giving them an asset that they can use to purchase almost anything and everything.
But whenever I talk about pay in the form of money, the response seems to be the employee is the one deciding to use his money for something therefore its not a concern. But you’re not paying anyone in abortions or contraceptives. You’re paying them in health coverage. How they use that coverage still seems to be their call, not yours.
January 4th, 2013 | 1:59 pm
I am obliged to provide for my employees something (a certain kind of health insurance) that is anathema to the mission of my business.
Joseph Knippenberg,
No, those businesses to which the mandate applies are required either (1) to provide the insurance the government requires or (2) pay a tax (or fee, or fine, or whatever you want to call it) of $2000 per employee. Since it costs considerably more than $2000 per employee to provide insurance, the company comes out ahead.
Now, there are other issues, of course. The business may want to provide its workers with insurance. It may put the business at a competitive disadvantage with similar companies that do provide insurance. On the other hand, a company that doesn’t provide insurance can afford to pay higher wages if it spends less on benefits. For some employees, it will actually be cheaper to buy insurance through a state exchange than accept it from the employer (because there are subsidies for people who buy their own insurance, whereas those who obtain insurance through an employer generally have to pay part of the cost).
I am of two minds regarding the contraceptive mandate, but it does seem to me that a business dedicated to religious principles is not necessarily being asked to make an unreasonable sacrifice to either comply with the mandate or pay the fine. Many businesses seek religious exemptions that they are denied. For example, the Amish opt out of Social Security for…
January 4th, 2013 | 2:40 pm
I thought the 10th circuit and the district court noted correctly the burden of the plaintiffs. It is “that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion.” The seventh Circuit insists that it is the fact that the contraception coverage exists. The problem with this is it misses a key fact of this matter. As the dissent points out, “In the usual course of events, an employer is not involved in the delivery of medical care to its employee or even aware (by virtue of physician‐patient privilege and statutory privacy protections) of what medical choices the employee is making in consultation with her physician; only the employee, her physician, and the insurer have knowledge of what services are being provided. What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.” It is somewhat nonsensical to suggest that the first amendment requires that a private insurance company must be circumstantially exempt from the law or negate the law in order to meet…
January 4th, 2013 | 3:53 pm
Good point Al,
Keep in mind this argument doesn’t just limit itself to abortion or contraception. What about child birth? How about an employer who feels large families are immoral? Can he demand a policy that doesn’t cover pregnancy for 3+ kid families? Or the employer who deems single motherhood immoral and feels pregnancy should only be covered for married women? We could go on, the scientologist employer who thinks psychology is evil, the one who opposes blood and organ transplants etc.
Are these religious beliefs not worthy of respect as the employer who opposes abortion or birth control? I would say he is within his rights to hold his views but we should not consider a requirement that he provide coverage equal to him being forced to directly subsidize those things. The one making the decision to purchase childbirth over contraception, blood transfusions over no transfusions, etc. is the employee not the employer.
January 4th, 2013 | 5:27 pm
Last fall, for a paper on the history of religious liberty in the U.S., I studied the jurisprudence, or jurisimprudence, behind the 2004 California Supreme Court Case, “Catholic Charities v State of California Department of Managed Healthcare.” I wondered why this state-level case, nearly identical to the looming federal mandate, was so little discussed in the then ripe controversy and debate over the HHS mandate.
The legislation even touts an altruistic sounding and rhetorically powerful title similar to the title of the ACA’s HHS mandate:”California’s Women’s Contraception Equity Act.” As the HHS mandate, the law equates women’s equity with unimpeded access to contraception. Furthermore, equally important to note, as the HHS mandate, both mandates require that employers’ offer all their employees—female and male –insurance-plans that cover contraceptive products for all employees. Likewise, the HHS mandate requires that employer-provided insurance plans cover all FDA approved contraception–contraceptive products designed and marketed to men very much included.
Returning to a more specifically jurisprudential note, Justice Janice Rogers Brown, the sole dissenter on the CSC, affirmed that the WCEA is direct violation of the Religious Clause–both the clause’s free-exercise and disestablishment parts.
In assuming the power to establish what is and is not a religious practice, Justice Janice Brown affirmed, the California legislature purposefully…
January 4th, 2013 | 6:21 pm
This piece effectively distinguishes between income and health insurance as compensation for employment:
http://www.thepublicdiscourse.com/2013/01/7403/
January 5th, 2013 | 3:31 am
Joseph,
The piece you cite doesn’t make much of a case for the difference, other than to assert that religious beliefs are whatever a person who says he is religious happens to say they are. Hence you would seem to accept my hypothetical that an employer could use health coverage to also try to deny things like birth to women he thinks morally shouldn’t be having kids.
January 5th, 2013 | 3:41 am
Likewise the cash wages and health coverage are not all that different. In both cases the actual purchasing decisions are driven by the employee.
A gift certificate to a steak house is a poor analogy because the purchasing decision can only be used in one limited location on a very limited range of goods. A better analogy might be a law that said 10% of wages have to be paid in the form of food stamps which, like gov’t food stamps, can be spent on just about any staple type food one would find in a supermarket.
Here the strict vegan employer might note that many employees will spend those stamps buying food that isn’t quite vegan. Nonetheless the fact remains the purchasing decision is driven by the employee who is using her pay. The vegan is no more subsidizing non-vegan food than he is by simply paying employees cash wages….which he knows will likely to be spent in ways he disapproves.
And while we are on the subject what about a simple law that said wages have to be paid with money? You are aware 100 years ago there were ‘factory towns’ where employers paid in ‘script’ that could only be used for company housing and company stores. It sounds like your reasoning would defend the right of such an employer today who argued that only by totally controlling what his pay could be spent on could he be sure he wasn’t indirectly violating his religious beliefs by his lowly employees eager to spend their wages on immorality.
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