Employers Test Boundaries of First Amendment in Contraception Lawsuits

December 3, 2013
Guest Post
by Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University
Last week the U.S. Supreme Court agreed to review two lower court decisions involving for-profit businesses seeking religious exemptions from the Affordable Care Act’s so-called “contraception mandate.” The mandate requires that employer healthcare plans cover all FDA-approved contraception without “cost-sharing”—that is, without a copayment or other out-of-pocket patient expense beyond the monthly plan premium. Churches and other “houses of worship” are fully exempt from the mandate, and there is a regulatory accommodation for religious nonprofits like religiously affiliated colleges and hospitals, which excuses them from complying with the mandate so long as they certify that compliance violates the tenets of their affiliated religion.
For-profit employers whose religious beliefs condemn the use of some or all of the mandated contraceptives have challenged the mandate under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from imposing a “substantial burden” on a person’s religious practices unless it is pursuing an exceptionally important goal that it cannot accomplish in another way. These employers are claiming that RFRA grants them the same kind of exemption as has been granted to churches, synagogues, and other religious congregations, even though they are unambiguously secular enterprises like craft stores, auto parts manufacturers, construction companies, and medical supply businesses. (I examined the weaknesses in these cases in an ACS Issue Brief last fall).
One of the mandate decisions the Court will review, Hobby Lobby Stores, Inc. v. Sebelius (10th Cir. June 27, 2013), decided that a for-profit corporation that operates a nation-wide chain of craft stores is a “person” who “exercises religion” under RFRA and thus is entitled to its protections. The other decision, Conestoga Wood Specialties Corporation v. Sebelius (3rd Cir. July 26, 2013) went the other way, finding that a for-profit corporation that operates a cabinet-making business is not protected by RFRA, and additionally holding that the mandate does not violate free exercise rights protected by the First Amendment.
These decisions raise at least two important constitutional questions: (1) Whether a secular employer may impose the cost of practicing his religion on employees who do not believe or participate in it; and (2) whether the Free Exercise Clause requires that a law containing even one secular exemption must for that reason also exempt every religious claimant.
The cases also pose important questions about how the courts should interpret RFRA, including (a) whether a large, secular corporation possesses the religious beliefs and personalities of its individual shareholders; (b) whether a burden on religion should be considered “substantial” just because a believer says it is; and (c) whether the government is required to spend money to alleviate a burden on religion.
In this post I take up the question whether an employer may force employees to pay the costs of practicing his religion by denying them the financial benefits of the mandate. I will address the other questions in subsequent posts.
It is axiomatic in the United States that no one should be forced to pay the material costs of practicing someone else’s religion. The Free Exercise Clause leaves us free to choose our own beliefs, but the Establishment Clause also leaves us free from the belief choices of others. (Rebecca Van Tassell and I have developed this argument in detail.) One of the principal abuses of 18th-century established churches—the very “establishments of religion” which the First Amendment prohibited Congress from supporting—was the imposition of significant financial, legal, and other penalties on those who did not belong to the established faith, while simultaneously granting special privileges to those who did.
Accordingly, the Supreme Court has consistently recognized that government may not alleviate material burdens on a religion by shifting those burdens to nonadherents and unbelievers. In Estate of Thornton v. Caldor (1985), for example, the Court invalidated a state law that gave employees an absolute right not to work on their chosen Sabbath, regardless of the costs their choices might impose on their employer and co-workers:
This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses . . . : The First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.
The Court recently (and unanimously) affirmed this principle in Cutter v. Wilkinson (2007), holding that a federal statute protecting the free exercise rights of prison inmates is constitutional only so long as accommodating the religious practices of inmates does not threaten the safety or other interests of prison officials and other inmates.
Employer exemptions from the Mandate under RFRA would mirror classic 18th-century religious establishments and violate contemporary Establishment Clause doctrine. They would deprive female employees and spouses of male employees of their legal entitlement to contraception coverage without cost-sharing, to facilitate the religious exercise of employers. A RFRA exemption would thus function like a penalty or tax on employees to support the practice of an employer’s anti-contraception religion, forcing employees to pay for contraceptives that should be fully covered by the employer’s healthcare plan under the law.
These out-of-pocket costs are not trivial. The most cost-effective contraceptives, such as hormonal patches and IUDs, require up-front payments of nearly a thousand dollars. Branded oral contraceptives can cost this much every year. Even generic oral contraceptives (which are not effective or medically appropriate for many women), cost several hundred dollars a year.
Some Mandate opponents argue that RFRA exemptions would not harm employees, because they can purchase contraceptives with their own money, leaving them no worse off than before the ACA was enacted. This is absurd, like arguing that a denial of Social Security benefits causes no harm because it leaves the disappointed claimant no worse off than she would have been in 1932 before Social Security was enacted.
Of course, we are well past 1932, and even 2012, when the Supreme Court upheld the ACA as a valid exercise of congressional power. The ACA and the Mandate are the law of the land, and accommodating an employer’s exercise of religion by denying his employees financial benefits under the law shifts the cost of practicing an anti-contraception religion from the employer who believes it to employees who do not. There can be no clearer violation of the Establishment Clause.
The Supreme Court should use Hobby Lobby and Constestoga Wood to clarify that RFRA exemptions violate the Establishment Clause when they shift the material costs of the accommodated religion from those who practice it to those who do not.