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.