The war over the Affordable Care Act is far from won. The Supreme Court, of course, found the Act to be constitutional back in June; however, the Court was specifically concerned with the complicated Article II limitations on Congressional power to enact the law and enforce the “individual mandate.”
In the wake of the decision, numerous lawsuits have begun winding through the lower courts that challenge the Act on religious exercise grounds. The plaintiffs (just about all are Catholic) argue that by requiring them to offer health insurance for their employees — including no-cost coverage for “preventative care for women,” defined to include all FDA-approved methods of birth control — the government has substantially burdened their ability to practice their faith.
The court hasn’t issued a final, permanent ruling in any of the cases — but on July 27th, Judge John L. Kane for the District of Colorado (10th Circuit) ruled (PDF) that until after their trial is finished and a decision has been reached, the government cannot require Hercules Industries to comply with the preventative care mandate. Known as an injunction, the decision applies only to Hercules (a point which the court highlights more than once) and does not necessarily mean that Hercules will win their lawsuit. However, the decision to grant a preliminary injunction includes the consideration of the party’s likelihood of ultimately winning; this means that even if this order does not control the outcome of the trial, it could be an accurate forecast of the final verdict.
The case is going forward under the Religious Freedom and Restoration Act. RFRA can be used against the federal government (but not the states); RFRA claims are very similar to First Amendment claims. If a law places a big enough obstacle in the path to religious free exercise, RFRA requires the government to justify the burden. It’s a legal see-saw; to outweigh the individual’s claim, the government must show that it has taken the least restrictive means of serving a compelling interest (see strict scrutiny). Often, the government can rely on things like protecting children or promoting public health to lend weight to its claims. Not this time.
This ruling suggests that the government has shot itself in the foot.
The court acknowledged that public health is clearly a compelling interest. But, relying on Supreme Court precedent, the court rejected the government’s argument that the serving the interest had to include forcing Hercules, in particular, to comply with the mandate. Why don’t they have to comply? Well, numerous exemptions to the act have already been made for many religious organizations and if the public interest can be served without forcing them to comply, the argument goes, surely there can be room for one more.
The Church may think that the Act is too restrictive, but the court finds the Act too accommodating. The court also feels that the Act is not the least restrictive means of serving the public health, because the government failed to demonstrate that it could not itself provide free contraceptive services to women. Conservatives think the government should stay out of the healthcare business; the court finds that they could do more. Would the Act would have been better able to survive these challenges if the government hadn’t tried to address them before they arose?
The court wanted more before analyzing the substantial burden claim. The defendants (the Departments of Health & Human Services, Labor, and the Treasury) argued that “as a for-profit, secular employer, Hercules cannot engage in an exercise of religion.” But, in its discussion of the arguments, the court paid special attention to the fact that Hercules Industries is an “s-corporation.” This is a tax-code designation allowing small(er), domestically held businesses to be taxed as individuals and pass the corporate tax burden through to the company’s shareholders. This creates a much closer relationship between the individual shareholders and the corporate entity. The question of whether corporations can exercise religion at all, and how the nature of “s-corps” changes that analysis, are difficult, complex, and new; seemingly eager to proceed, the judge has given the parties a month to file a plan for managing the case going forward.
Why is it that Hercules cannot possibly provide birth control to its employees? Well, Hercules Industries is in the very religious (cue snark) business of manufacturing and distributing heating and air conditioning systems. Granted, it always has been and still remains a family-owned business; president, VP, and every member of the board are all descendants of founder William E. Newland. The Newlands, all Catholic, say that they “seek to run Hercules in a manner that reflects their sincerely held religious beliefs.”
Indeed, the court noted that board members are permitted to prioritize “religious, moral, and ethical standards” at the expense of profitability, an unusual position for any corporation to take. This pious policy has been part of their articles of incorporation for an entire year and a half; it was implemented as part of a program, also in place for an astounding 18 months, “to build their corporate culture based on Catholic principles.” Oh, did I forget to mention that the company was founded 50 years ago? (They must not have needed to “build a corporate culture” until now.)
In all seriousness, the Newlands didn’t need a paper policy emphasizing their sincerely held religious beliefs until the ACA was passed in 2010. They’ve been using those standards to avoid providing coverage for contraception for as long as they’ve been offering health plans to their employees without ever having to formally declare it so. In fact, the preventative care mandate strikes directly at the heart of this problem — without minimum standards, access to employee benefits for healthcare services can be determined by whether or not the employer approves of that service. The mandate was designed to remove substantial impediments that prevent women from having access to basic healthcare services — impediments like employers who want all the benefits of secularity without having to follow any of the secular rules.
The Newlands may not want anyone to take birth control; they are perfectly free to take that position, and their right to do so is one of the best things about this country. What rankles me is that they are using their position of power over their employees to inject themselves into what should be a private decision. Employees want paychecks and benefits, not another set of parents. Moral choices aren’t moral when they aren’t choices.
The government isn’t asking religious organizations to undermine their anti-birth control rhetoric by passing out condoms and Plan B pills. They’re not forcing anyone to take birth control, nor do they advocate it. They’re requiring large bodies like hospitals, universities and corporations, which exist for the purposes of healthcare, education and profit, to provide the same insurance coverage regardless of whether they are secular or religiously affiliated. Why on earth should this company be exempt? How can anyone who claims to champion the individual right to exercise religion dare to make moral decisions for their employees? It’s never been about individual rights, has it?
The Church has been losing power for years, and they’ve finally found a weak target — a bill unpopular for using purportedly authoritarian means to achieve ostensibly humanitarian goals. (Kind of like… a church?) Never mind the fact that non-profit organizations which exist for the purpose of practicing their faith (read: actual religious organizations) are exempt. Ignore the multitudes of sexually experienced Catholic women who have used birth control without, it seems, being excommunicated or otherwise burdened in their ability to practice their faith. (That’s 98% of them, to be precise — see PolitiFact’s Truth-O-Meter.) It makes no difference that the provisions apply to employers who voluntarily participate in the secular marketplace, serving and employing individuals who do not necessarily belong to the same religion as those who happen to be running the company. No matter, though, since “preventative care” apparently includes such tools of the devil as birth control, tubal ligation, and mammograms. The Church simply will not allow this attack on religious liberty masquerading as a “neutral, generally applicable law furthering the interest of public health and making numerous accommodations for religious exercise” to go unchallenged. They can’t afford to.
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