Twisting religious freedom

By Scott Forsyth The Daily Record Newswire "This is not about women. This is about religious freedom," so proclaimed Rep. Joe Walsh indignantly at a House hearing two weeks ago. The "this" is the regulation of the Department of Health and Human Services requiring an employer to include contraception, at no cost to the patient, in all health insurance plans the employer provides. Houses of worship and religious organizations that exclude nonbelievers are exempt. The day the regulation became final, the president announced he would temper the rule's application to organizations, such as hospitals and universities, that are affiliated with religions that object to contraception on religious grounds. What the modified regulation will look like remains to be seen. To date we have only heard talk. Women pay 68 percent more than men in out-of-pocket expenses for health care. The primary reason for the discrepancy is the cost of reproductive health. Studies show that better access to contraception decreases unintended pregnancies and improves women's health -- short-term and long-term. Rep. Walsh notwithstanding, the regulation is all about women. Twenty-eight states, including New York, have seen the wisdom of the policy and require insurance plans to cover contraception. Walsh also overstates the case for religious freedom. The relevant part of the First Amendment states that "Congress shall make no law ... prohibiting the free exercise (of religion.)" In 1990, the U.S. Supreme Court held "that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Employment Div., Dept. Of Human Resources of Ore. v. Smith, 494 U.S. 872, 879 (1990). A neutral law is one that does not "target religious beliefs as such" or has as its "object to infringe upon or restrict practices because of their religious motivation," Church of Lukumi Babalu Aye, Inc., v. Hialeah, 508 U.S. 520, 533 (1993). The HHS regulation applies to all employers, with one religious exception at the moment. It does not target the beliefs of any religious group. Its object is to improve women's health by making birth control a core medical service. It is a neutral law with an incidental effect on the exercise of religion by religiously affiliated organizations. Actually, granting religiously affiliated organizations an exemption not compelled by the Free Exercise Clause may run afoul of the Establishment Clause. Government may accommodate religion only if the accommodation does not impose "substantial burdens on nonbeneficiaries" of the accommodation. Too much accommodation will reveal a measure whose primary effect is to advance religion, a test of excessive entanglement between church and state. In Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), the Supreme Court invalidated a statute that relieved a person of work on the day he designated to be his Sabbath. The statute made no exceptions, not for the economic burden on the employer or the inconvenience to fellow employees caused by the person's absence. The "unyielding weighting" of the religious interest "over all other interests" proved fatal. Expanding the exemption will definitely benefit religiously affiliated organizations. They will decide if their religion proscribes the funding of contraception. If it does, they will pay less in premiums. However, the burden of the expansion will be high. More women will not be able to obtain insurance coverage for contraception. They may forego the use of contraceptives entirely, impairing their health. Whether insurance carriers will pay for the medication remains to be seen. The proposed accommodation is another all or nothing approach. Opponents of the regulation can plausibly argue the HHS regulation in its current form violates the Religious Freedom Restoration Act. The RFRA bars the federal government from imposing a substantial burden on the exercise of religion unless doing so furthers a "compelling governmental interest" and proceeds by the "least restrictive means." 42 U.S.C. 2000bb. If the test sounds like strict scrutiny, that was the intent of Congress, to restore the state of the law on religious freedom prior to the changes wrought by the Supreme Court in Smith. The test sounds very tough on paper but before and after, Smith has been satisfied with some frequency. Belmont Abbey College, a small Catholic college in North Carolina, did not wait until the HHS regulation became final. In November it filed a lawsuit challenging the regulation. It is relying heavily on the RFRA. Belmont Abbey College v. Sebelius, Civil Action No. 1:11-cv-01989 (Dist. Ct. Dist. Col. 2011). If the regulation does fail the test of the RFRA, the court hearing the suit must still decide if the application of the RFRA to the facts of the case advances religion. If so, the Establishment Clause will trump the RFRA. Expect a lot of legal maneuvering and more bellowing from the likes of Representative Walsh. Here's hoping when the dust settles women prevail. ------------ Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Mar 2, 2012