Bruce Ledewitz, a law professor at Duquesne University, has a column in the Pittsburgh Post-Gazette about the dozens of legal challenges to the contraception mandate in the Affordable Care Act. First he explains that companies don’t actually have to provide contraception as part of their group policies:
What the editorial did not make clear, however, is that religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.
One may doubt the economics of this arrangement — how could the coverage really be free? — but this was not the objection of the religious plaintiffs in this case. They objected to the presence of certain coverage in their policies and even objected to forwarding a list of employees. This claim has been raised by religious employers in litigation across the country.
To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement.
Next he argues that this is a problem with the Religious Freedom Restoration Act, passed by Congress in 1993 to allow religious groups and individuals to get exemptions from generally applicable laws if they place an “undue burden” on their free exercise of religion and do not serve a “compelling governmental interest.” He also argues that if those companies win their suits, RFRA could be overturned.
The problem is the Religious Freedom Restoration Act itself, which provides a statutory claim of exemption whenever a religious claimant feels that his religious liberty is substantially impaired by a federal law. RFRA has encouraged all manner of extreme assertions of religious liberty against the Affordable Care Act.
Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.
RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases…
I consider myself to be a defender of religious-liberty claims against legal requirements that threaten religious conscience. I am part of an informal coalition of law professors who lobby state legislatures to include religious exemptions in gay marriage legislation.
But if RFRA really means what the plaintiffs in the Affordable Care Act litigation claim that it means — that religious believers are free to invoke the protections of the act no matter how minuscule their legal obligations appear to be and despite a commercial and even profit-making context — then RFRA is unworkable and will inevitably be repealed. If that occurs, religious believers will have inadvertently undermined the very religious liberty that they now invoke and that America rightly prizes.
I doubt that last prediction, but I think he’s right about the breadth of the religious exemption being demanded here. If the companies challenging this policy win, their argument would apply equally well in suits seeking to gut the nation’s anti-discrimination laws. If a person’s “deeply held religious beliefs” are enough to eliminate their requirement to comply with this law, why would it not also eliminate their requirement to comply with laws that forbid discrimination against gay people, women or racial minorities?