More on the Contraception Non-Mandate

Before tomorrow’s oral arguments,let me note again that people interested in the latest ad hoc legal challenge to the ACA should definitely look at Marty Lederman’s series of posts, helpfully collected here. We’ve already discussed one of his crucial points, namely that there is no contraception “mandate.” Hobby Lobby is not legally required to compensate its employees with health insurance at all. The regulations imposed by the ACA are on insurance plans, not on the corporations per se. What is erroneously described as a “mandate” simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards. As is often the case with specious religious freedom arguments, the corporation wants it both ways, to get the tax benefits without providing the full benefits to employees. And if the corporation wanted to argue they have no practical choice but to offer coverage, then according to the logic of their own arguments, the religion of the managers is not being burdened; they’re not paying for the contraception or making the decision to include it in insurance plans.

From his contribution to the SCOTUSblog forum, the lack of precedent on behalf of the challenge is also worth noting:

The plaintiffs in these cases are seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.

In their scores of briefs, the plaintiffs and their many amici fail to cite a single case, apart from the current contraception coverage litigation, in which a court has held that either the Free Exercise Clause or RFRA entitled a for-profit commercial enterprise to an exemption from a generally applicable law by virtue of a burden on the religious exercise of the employer or its owners, managers, or directors. And whenever such a case has reached the Supreme Court – including Braunfeld v. Brown (1961), Newman v. Piggie Park Enterprises, Inc. (1968), and United States v. Lee (1982) – the Court has overwhelmingly or unanimously rejected it. (Moreover, even apart from RFRA and the Free Exercise Clause, Congress has rarely, if ever, extended specifically religious exemptions to for-profit enterprises.)

This unbroken history is hardly surprising, given that in virtually every such case – and even in cases where nonprofit commercial enterprises seek religious exemptions, such as Tony & Susan Alamo Foundation v. Secretary of Labor (1985), another unanimous decision – a religious exemption would require customers, employees, or competitors to bear a heavy cost in the service of another’s religion, something the Court has understandably been loath to sanction.

Picking up on this last point, Walter Dellinger notes that while the burden “imposed” by the non-mandate on employers is trivial-to-non-existent, the burden accepting this unprecedented legal argument would have on employees is not:

The Supreme Court has held that any accommodation of religion “must be measured so that it does not override other significant interests,” especially those of third parties. The exemption being sought in these cases would do just that. Giving legal force to corporations’ objections to covering the use of contraceptives by their employees would deny to thousands of women affordable access to the most effective methods of birth control — a benefit that those women, or the female dependents of employees, earn as part of their employment compensation package.

In these cases, the shifting of a burden to third parties is not merely a matter of economics. More than half of all American women experience an unintended pregnancy, according to a 2008 study, and 40 percent of those pregnancies end in abortion. Improved access to the most reliable methods of contraception would significantly reduce both unintended pregnancy and the need for abortion. For all women, denying practical access to the method of contraception that is right for their health and life circumstances, as well as the well-being of their families, can represent a serious incursion into their individual moral autonomy.

Selectively denying insurance coverage for contraceptive methods an employer considers sinful effectively makes the employer a party to a woman’s medical consultations. An understanding of the importance of access to the full range of contraception options should lead the court to reject claims of religious entitlement that so greatly burden the interests of others.

As we’re also seeing with gay and lesbian rights, accepting the argument would wreak havoc with civil rights law. Of course, to many proponents of the litigation,

this is a feature, not a bug.