Reading the Tea Leaves

WHY THE SUPREME COURT IS UNLIKELY TO BLOCK THE CONTRACEPTION MANDATE

Many of the groups challenging the contraception mandate in the Affordable Care Act on religious-liberty grounds hang their hopes on one Supreme Court case: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. Decided in 2006, it is the only case regarding the substantive requirements of* the Religious Freedom Restoration Act (RFRA) to have come before the High Court thus far.

The superficial attraction of O Centro is obvious. As mandated by RFRA, the Court applied the “strict scrutiny” test, and the religious claimants won. The Court decided that the federal government had not proved a compelling state interest in stopping a tiny religious sect from using hoasca, a sacramental tea made from a hallucinogen banned under federal law.

Congress passed RFRA in 1993. It was a direct response to Employment Division v. Smith (1990), in which the Supreme Court held that the Free Exercise Clause did not require the state of Oregon to exempt Native Americans using peyote in their worship services from antidrug laws, which were neutral laws of general applicability. RFRA attempted to restore the pre-Smith “strict scrutiny” test in order to broaden exemptions for religious groups to otherwise generally applicable laws. 

In light of this history, O Centro was an uncommonly straightforward RFRA case. Noting that Congress had long exempted Native American ceremonies from federal drug laws, the Court pointed out the incongruity of prohibiting the religious use of hoasca. In short, if RFRA didn’t apply in this case, it’s hard to see when it would apply.

But the Court also recognized that not all religious-liberty cases can be resolved in the same way. The justices emphasized that the claimants were a small sect asking for a narrowly defined and contained exemption to a general legal prohibition. That exemption would apply only in limited circumstances—to members of the sect in question and only in the particular context of their worship services. It would not permit members to use the hallucinogenic tea outside that setting. Moreover, the scope of the exemption was highly limited—the Court stressed that only thirty people belonged to the sect in the United States. Finally, it was clear that no third parties would be affected, much less harmed, by granting this carefully delineated exemption.

By contrast, the exemption being sought from the contraception mandate by the U.S. Conference of Catholic Bishops and others would be far broader in both scope and effect, particularly on third parties. It is not an exemption from a negative prohibition, but an exemption from a positive requirement, which is designed to secure an array of health benefits for the general population, benefits that affect their entire lives, not merely their work lives. According to the National Institute of Medicine, first-dollar coverage of contraceptives as part of a preventive-service program improves the overall health of women and their unborn children.

Furthermore, O Centro dealt with a clearly defined object of the exemption: sacramental tea containing a particular hallucinogen. In contrast, the same arguments used to justify the objection to the contraception mandate can immediately apply to other services in the health-care benefit package. What if an employer refuses to cover HPV vaccinations for girls and young women because they might encourage sexual immorality in young people? What if an employer decides not to cover breastfeeding supplies because she has read literature documenting their abortifacient effects?

Moreover, unlike the sect protected in O Centro, the number of people affected by an exception to the mandate is not negligible. Hundreds of thousands of people are employed by Catholic institutions across the country. Ironically enough, the spate of religious-liberty cases now being brought by Catholic and other groups actually undermines their argument, by showing the administrative unwieldiness of the exemption they claim. In American law, facts matter, not merely legal principles. And the facts of the contraceptive mandate are very different from those in O Centro.

In response to objections by the bishops and others, the Obama administration recently proposed a reconfigured exemption to the mandate, which broadened the protection for not-for-profit employers. Is this exemption, or one even broader to cover for-profit employers, required under RFRA, according to the framework set out in O Centro?  I doubt it. In fact, I think the original, narrow exemption would have survived litigation. It’s time for the bishops to take yes for an answer.

 


*updated from an earlier version to reflect the addition of the phrase "substantive requirements of"  

Published in the 2013-04-12 issue: 

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.

Please email comments to [email protected] and join the conversation on our Facebook page.

Must Reads

Politics
Culture
Books