The plaintiffs include religiously affiliated schools, colleges, universities and charities, as well as a Catholic television network, two private citizens and the Republican attorneys general of six states.
Some Republicans predict the matter will ultimately be decided by the nation’s highest court. Speaking moments after the Senate voted down his attempt to expand the rule’s conscience exemption last Thursday, Sen. Roy Blunt (R-Mo.) pointed in the direction of the Supreme Court as he declared: “This issue is not over. . . . These faith-based institutions will not be willing to change their character. . . . And so this is a debate that might be settled at that building across the street.”
Of course, the fight could be rendered unnecessary if the Supreme Court chooses to invalidate the entire 2010 health-care law in another, otherwise unrelated, case it has agreed to consider this term. It is that law that gave the administration authority to issue the birth-control rule.
In the meantime, though, the plaintiffs will argue, among other claims, that the rule, which takes effect Aug. 1, interferes with their First Amendment right to free exercise of religion by effectively compelling them to provide a form of coverage that conflicts with their beliefs.
To win that argument, they will need to clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is “neutral and generally applicable” — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.
Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise “would be courting anarchy” by making “the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”
In the last decade, the highest state courts of both New York and California cited the Smith decision in blocking First Amendment challenges to state contraceptive-coverage laws virtually identical to the federal rule.
In both instances, the state courts found that their state’s laws met the “neutral and generally applicable” standard set out in Smith. And in both cases, the U.S. Supreme Court declined to hear an appeal of the lower court’s decision.
The plaintiffs in the suits now pending over the federal rule contend it is different because it offers exemptions to all sorts of other groups — including small employers and “grandfathered” health plans that were in existence before the health-care law was adopted.
“This indicates that the law is not generally applicable,” said Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, a public-interest law firm that is representing employers in four of the legal challenges.
Brigitte Amiri, an attorney with the American Civil Liberties Union’s Reproductive Freedom Project, questions that logic. Most of the exemptions amount to ways of phasing in the rule over time — for instance, the assumption is that most grandfathered plans will eventually lose that status, she noted.
“These exemptions don’t signal that a religion is being targeted. They’re not exemptions that have to do with substance, they’re logistical,” she said.
Using congressional law
In addition to their constitutional challenges, the plaintiffs will try to convince judges that the federal rule violates a 1993 law adopted by Congress in response to the Supreme Court’s Smith decision.
The Religious Freedom Restoration Act signed into law by President Bill Clinton, essentially replaces the “neutral and generally applicable” standard set by Smith with one that is far more stringent. It states that even a generally applicable federal law cannot “substantially burden” a person’s exercise of religion unless the law furthers a “compelling government interest” and does so by the “least restrictive means.”
The plaintiffs argue that because the vast majority of health plans in America already offer contraceptive coverage, the government’s aim to make that coverage virtually universal is not compelling. And they contend the administration could achieve its goal through other means — for example by having the government directly provide contraceptives to women who work for religious organizations that don’t offer it.
Here again, the ACLU’s Amiri predicts a tough fight, because the administration has already announced that it will craft accommodations for religiously affiliated employers.
These will include an arrangement in which an employer can refuse to include birth control in its plan and, instead, the insurance company issuing the plan will be required to provide contraception coverage directly to workers without charging an additional premium. Administration officials say they are also working on an accommodation for employers that self-insure. And they will allow religious employers to opt out of the birth-control rule, set to take effect Aug. 1, for one year, to ensure there is sufficient time to finalize the accommodations.
The Department of Justice has already filed motions to dismiss two of the cases on the grounds that the government is still developing the rule.
“The administration’s announced plan — to work with religious organizations to address their concerns while still ensuring that women have access to preventive services — removes any real threat of harm from the regulation,” a department spokesperson said.