A column yesterday argued that the “Obamacare” mandate that employers cover birth control in their employee’s health plans is a clear tyrannical violation of religious liberty in the United States. The column unfortunately shows a clear misunderstanding of the legal issues surrounding the birth control mandate.
The Constitution does not guarantee that every infringement against an individual’s religious liberty is unconstitutional. The Supreme Court has upheld burdens upon religious freedom many times. Justice Antonin Scalia’s opinion in Employment Division v. Smith held that neutral laws of general applicability do not violate an individual’s free exercise under the Constitution. In that case, the denial of unemployment benefits to individuals who had been fired after they ingested peyote in line with their religious beliefs was not unconstitutional.
In an attempt to counter the court’s holding in Employment Division v. Smith, Congress passed the Religious Freedom Restoration Act (RFRA). According to the act, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” To get around this requirement, the act allows for laws that are in furtherance of a compelling governmental interest in the least restrictive way.
In order for the Little Sisters of the Poor, Hobby Lobby or any of the other groups that have challenged the mandate to succeed, they must prove these businesses have a religious liberty that is being substantially burdened by the contraceptive mandate and then that the law is not a compelling governmental interest that is the least restrictive way to further the governmental interest.
The Little Sisters of the Poor have the most difficult argument because, as a religious non-profit organization, all they must do to obtain relief from the requirement is to sign a certification form expressing their religious objection to contraceptive coverage. The two-page certification form would take, according to the LA Times, five minutes to fill out.
Even Hobby Lobby has a difficult argument in attempting to obtain relief from the contraceptive mandate. First, the corporation must argue that their business has a religious belief that could be violated under the First Amendment. Given the line of cases including Citizens United v. FEC, this is likely an argument the Supreme Court will be receptive to.
The biggest question is whether the Supreme Court would accept the mandate not being a compelling interest. About half of all pregnancies in this country are unintended, and those unintended pregnancies can have adverse effects on the woman and the child. Also, despite what Ms. Chretien states, birth control is not something that is completely affordable. Many cannot take the cheaper generic version of the pills.
That is to say nothing of the fact that Hobby Lobby would have to show that requiring birth control coverage is not in furtherance of the compelling governmental interest in the least restrictive way. Businesses would likely be more effective in arguing against the mandate if they are an LLC or a closed corporation, but corporations such as Hobby Lobby and publicly traded corporations would have a difficult time showing that their religious liberty would be violated by the contraceptive mandate.
Obamacare’s contraceptive mandate is not a tyrannical religious liberty destroyer. In fact, it’s not even clear that the mandate’s requirement for large businesses such as Hobby Lobby is unconstitutional. It’s especially difficult for the Little Sisters of the Poor to argue their religious liberty is being infringed upon when they only have to sign a paper to exempt themselves from paying for birth control. Religious liberty is extremely important in this country, but having a religious belief doesn’t mean you are exempt from all generally applicable laws.
Matthew Bailey is a second-year law student. His column runs biweekly.
