//  6/4/17  //  In-Depth Analysis

Religious exemptions from laws that require doctors to care for patients, employers to pay employees, or store owners to deal with customers in a respectful and nondiscriminatory way can hurt and demean citizens who do not share the claimant’s religious beliefs. Exemption claims of this kind are now spreading under the banner of religious liberty in the culture wars.

Today, some conservatives are advancing expansive religious exemption claims to stigmatize contraception and restrict women’s access to it. Contraception is “the new abortion.” There are religious conservatives who call certain contraceptive methods “abortifacients,” even in cases where evidence shows that the methods do not operate in ways that satisfy their religious definition of abortifacients. Others oppose all methods of contraception as encouraging “a contraceptive mentality” that separates sex and reproduction.

These claims about contraception are connected not only to abortion but also to same-sex marriage. As we documented in our 2015 Yale Law Journal article, “Conscience Wars,” many religious conservatives object to contraception, abortion, and same-sex marriage in part because they divert sex and marriage from procreative ends.

Since taking office, the Trump-Pence Administration has repeatedly threatened to expand religious exemptions. According to recent leaks and news reports, it is now preparing to back employers who object to providing their employees with health insurance benefits that cover contraception. The regulatory changes the Administration intends to implement extend well beyond the religious accommodations authorized by the U.S. Supreme Court in Burwell v. Hobby Lobby Stores, Inc. (2014) and Zubik v. Burwell (2016). And its efforts offer a model for the kinds of exemptions the Administration has been threatening for months to impose on LGBT people. 

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For years now, political conflict has engulfed the provisions of the Affordable Care Act (ACA) that require insurers to cover preventative services including contraception. When the Obama Administration rolled out the ACA, it offered an accommodation to religiously affiliated nonprofits (e.g., religious schools) that had religious objections to providing their employees with insurance covering contraception. The Obama Administration crafted an accommodation that protected both the objecting religious organizations and their employees: it allowed the religious nonprofits to notify the government of their religious objections, and the government would then arrange with other entities to provide their employees the contraceptive coverage to which all other employees were entitled under the ACA. Seeking a similar deal, closely-held for-profit corporations brought Religious Freedom Restoration Act (RFRA) suits against the Obama Administration’s religious accommodation regulations. In Hobby Lobby, the Court ruled in their favor. To comply with the Court’s ruling, the government then adopted regulations extending the accommodation for religiously affiliated nonprofits to closely-held for-profit corporations.

Now, a leaked draft of an interim final rule that the Administration is considering threatens dramatically to expand existing exemptions for employers who object to contraception. The draft rule expresses deep skepticism about the value of contraception, suggesting that contraception leads to an increase in “teen sexual activity outside of marriage” and questioning whether the use of contraception reduces “rates of unintended pregnancy and abortion for unmarried women.’”

The draft rule announces that its goal is to “expand exemptions for religious beliefs and moral convictions for certain entities or individuals whose health plans may otherwise be subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act (ACA)” (emphasis added). The draft rule expands exemptions in two ways. First, the draft rule offers employers a complete exemption from the mandate—rather than an accommodation that includes a mechanism to ensure that employees otherwise have access to the contraceptive coverage to which they are entitled. And second, the draft rule applies to an employer that objects to the contraceptive coverage requirements on religious or moral grounds.

This form of exemption goes well beyond our country’s religious liberty tradition; it dramatically exceeds what the Court authorized in Hobby Lobby; and it threatens to inflict significant and targeted harm on untold numbers of employees. As we have argued—and as the Obama Administration plainly appreciated—there are ways to accommodate sincere religious objections and protect other citizens who do not share the objectors’ beliefs. Unfortunately, the Trump Administration has abandoned that path.

Note two crucial features of the draft rule. The rule would authorize employers to restrict contraceptive access for employees who do not share their employers’ beliefs. (Consider that even 65% of Catholics believe that employers with religious objections to the use of birth control should be required to provide it in health insurance plans for their employees.) And in authorizing not only religious but also moral objections, the rule would allow an employer simply to refuse to comply with regulations it opposes, regardless of whether those regulations burden the employer’s religious exercise.

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U.S. law is relatively generous in allowing religious accommodation. But traditional religious accommodation cases have involved ritual or ceremonial observance—such as wearing a head covering or observing a Saturday Sabbath. In these cases, the religious practitioners’ faith claims are not focused on other citizens, and the costs of accommodating their claims are minimal and widely shared.

In those cases where accommodation of one citizen’s faith claim would impose significant costs on another citizen who does not share the claimant’s beliefs, our law sensibly draws a line. Even when a religious claim is in good faith, the law does not ask one citizen to bear the costs of another’s religious exercise. Constitutional and civil rights precedents limit religious accommodation that would inflict significant and targeted harms on other citizens.

The Administration’s draft rule is not in conformity with this limiting principle—a principle that the Supreme Court has twice expressly and recently affirmed in religious accommodation challenges to the ACA’s contraceptive coverage requirements. Others, including those writing on Take Care, have made constitutional arguments against the draft rule. In this post, we are speaking from common sense principles of fairness that guide our religious liberty tradition. We want readers to appreciate how much more radical the Trump Administration’s approach is than anything the Supreme Court has yet authorized.

The Court decided Hobby Lobby on the assumption that an accommodation could be granted to closely-held for-profit corporations without depriving the firm’s female employees of contraceptive coverage to which they were entitled under the ACA. The Hobby Lobby majority reasoned that because the government could provide the claimants’ employees with contraception without involving their employer, “[t]he effect of the . . . accommodation on the women employed by Hobby Lobby . . . would be precisely zero” (emphasis added). It was likely Justice Kennedy who focused the majority opinion on third-party harm as a limiting principle; in a concurring opinion, Justice Kennedy not only credited the government’s compelling interest in protecting women’s health but also expressed concern with the impact of the sought-after accommodation on female employees.

The Court reiterated third-party harm as a limiting principle on religious accommodation two years later when it decided Zubik v. Burwell. Religiously affiliated nonprofits objected to the accommodation that the Obama Administration had provided; instead, they sought a complete exemption from the coverage requirements. In a per curiam order, the Court remanded the cases to the lower courts with instructions that the parties be given “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” Yet again, the Court conditioned accommodation on protection of employees who do not share their employers’ beliefs.

The Trump Administration’s draft rule departs from the reasoning of Hobby Lobby and Zubik. It does not include a mechanism by which to protect the employees of objecting employers. Those pushing broad exemptions of the kind in the draft Trump Administration rule may claim that women can simply buy their own insurance in the private market—an argument that religiously affiliated nonprofits made in their unsuccessful attempt for a complete exemption in Zubik. But contraception-only insurance does not exist. Further, this Administration is certainly not going to directly provide contraceptive coverage to women denied coverage through their employers. Women, under the draft rule, are simply left to fend for themselves in ways that our religious liberty tradition has not tolerated: they are made to bear the significant costs of other citizens’ religious beliefs.

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The draft rule goes beyond the limits of Hobby Lobby and Zubik in yet another way. It requires the accommodation of not only religious but also moral objections. RFRA, like the Constitution’s Free Exercise Clause, singles out religion for special treatment. Hobby Lobby and Zubik authorized accommodations for organizations with sincere religious objections to providing contraceptive coverage in employee insurance benefits. Conservatives litigated Hobby Lobby and Zubik as faith-based arguments for exemption, and more generally conservatives have mobilized under the banner of faith.

But in this context, faith-based arguments for exemptions have straddled the line between religion and politics. Further, with the deference that the Supreme Court showed to religious believers in Hobby Lobby and Zubik, one might have already worried that judicially-authorized accommodations would come to include moral objectors. But the proposed rule now makes this abundantly clear; it would authorize those who oppose the contraceptive coverage requirement, regardless of whether their opposition springs from religious convictions, to refuse to comply with that requirement.

We find much to be said for expanding conscience objections to include ethical as well as religious objections. But, without a doubt, proceeding down this path vastly expands the universe of potential objectors, and, without a limiting principle or a mechanism for mediating the impact on other citizens, sets up conditions likely to obstruct effective enforcement of the law.

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On both dimensions—the failure to mediate impact on other citizens, and the inclusion of religious and moral convictions—the draft rule departs from religious liberty precedents under RFRA and the Constitution’s Free Exercise Clause. Instead, and quite strikingly, the rule finds common ground with a body of healthcare refusal laws that has steadily expanded in opposition to laws protecting women’s rights to abortion and contraception.

Healthcare refusal laws trace their origins to the Church Amendment, which Congress passed with near unanimous support in the wake of Roe v. Wade. Under the Church Amendment, receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions.” When opponents of abortion failed to persuade the Court to overturn Roe in 1992, they enacted much more expansive healthcare refusal laws at the federal and state levels.

Like the proposed rule, healthcare refusal laws authorize objections based not only on religious but also moral grounds. And like the proposed rule, healthcare refusal laws do little to mitigate the harms that refusals would impose on other citizens. Notably, these healthcare refusal laws not only authorize providers and institutions to deny abortion or contraceptive services; they also authorize healthcare providers and institutions to refuse to provide patients with referrals, counseling, and information that would inform them that they are being denied services or lead them to seek alternative care. This body of healthcare refusal laws flagrantly ignores the principle that limits religious accommodation when it imposes significant and targeted harms on other citizens.

In fact, Congress refused to write a healthcare refusal provision of this kind into the ACA. In opposing the ACA, Republicans sought to incorporate into the statute conscience exemptions from the proposed contraceptive coverage requirement. In 2012, the Respect for Rights of Conscience Act, known as the Blunt Amendment, was introduced to amend the ACA to exempt any employer from “providing coverage”—and any plan from “paying for coverage”—of any “items or services . . . contrary to the religious beliefs or moral convictions of the sponsor, issuer, or other entity offering the plan.” Note the inclusion of religious and moral convictions, and note the lack of a mechanism to mitigate the impact of accommodation on the women that Congress had deliberately sought to protect through the ACA. Ultimately, the Blunt Amendment was narrowly defeated in the Senate, in a vote that largely tracked party lines.

After failing to secure an exemption legislatively, public interest law firms sought exemptions through litigation. An attorney from the Becket Fund for Religious Liberty approached the general counsel of Hobby Lobby about filing suit. RFRA challenges to the ACA’s contraceptive coverage requirement soon proliferated. Nonetheless, in both Hobby Lobby and Zubik, the Court articulated a limiting principle for protecting nonbelievers from harm—a limiting principle now breached by the Trump Administration’s draft rule.

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Conscience objections of this kind are not limited to contraception. Opponents of LGBT equality invoke them as a model, too. As same-sex couples gained the right to marry and state and federal lawmakers pressed for antidiscrimination laws to include sexual orientation and gender identity, opponents sought religious exemptions.

Before the Supreme Court’s 2015 marriage equality ruling in Obergefell v. Hodges, Ryan Anderson wrote in the National Review, “we must . . . make clear that court-imposed same-sex marriage via a Roe style decision will not settle the marriage debate any more than it has settled the abortion debate.” Anderson immediately pivoted to religious freedom: “Whatever the Court does will cause less damage if we . . . highlight the importance of religious liberty. Even if the Court were to redefine marriage, government should not require third parties to recognize a same-sex relationship as a marriage.”

As we document in “Conscience Wars,” opponents of same-sex marriage abortion and contraception hold up refusal laws as a model for shaping law in the LGBT context. Bills proposing broad exemptions from laws protecting LGBT individuals are now proliferating in state legislatures around the country. Laws like Mississippi’s HB 1523—which at the time of this writing remains subject to a district court injunction—authorize individuals and businesses to refuse to serve same-sex couples based on religious or moral convictions. And they do little to mitigate the impact of refusals on LGBT people.

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From this perspective, we see how broad exemptions can function as a strategy for political mobilization. Without change in numbers or belief, advocates can shift from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that offend traditional morality. Accommodating religious and moral objections in these circumstances may function to enable “preservation through transformation”: when an existing legal regime is successfully challenged so that its rules and reasons no longer seem persuasive or legitimate, defenders may adopt new rules and reasons that preserve elements of the challenged regime in seemingly more legitimate forms.

In this way, claims for religious exemption may not cool conflict, but instead provide a way to continue conflict in a new form. Indeed, some of those arguing for broad exemptions admit that their “political potency” is part of the point. In the Trump era, exemptions have become a powerful strategy to oppose laws protecting contraception and same-sex marriage. The rule that may soon take effect shows how exemptions can undermine the aims of a law, as they become more sweeping and the harms they inflict go without redress.

An accommodation regime’s pluralism is measured, not only by its treatment of objectors, but also by its attention to protecting other citizens who do not share the objectors’ beliefs. As we have argued (here and here), religious accommodations can and should be designed in ways that mitigate the impact on those who do not share the claimants’ beliefs. Exemption regimes that exhibit indifference to the impact of widespread exemptions on others do not promote pluralism; they sanction and promote the objectors’ commitments.


Disclosure: Douglas NeJaime testified as one of the plaintiffs’ expert witnesses in Campaign for Southern Equality v. Bryant, a challenge to Mississippi’s HB 1523.

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