To understand the U.S. Supreme Court’s controversial decision Monday to allow some employers to not cover contraceptives they view as akin to abortion, it’s important to look back in time. The question of where government control ends and religious practices start has been the source of contentious debate since this country’s founding.
In 1990, the Supreme Court decided a case with repercussions today. In Oregon, two men were fired from their jobs because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which they were members. When they applied for unemployment compensation, they were denied because they had been let go for “misconduct.”
The country’s highest court sided with the state of Oregon. “Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” wrote conservative Justice Antonin Scalia at the time.
Three years later, a Democratically controlled Congress passed, and President Bill Clinton signed, the Religious Freedom Restoration Act. Setting the course for Monday’s so-called Hobby Lobby decision, it stated that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” effectively countering and rebuking the Supreme Court’s previous Oregon decision.
Even though the Constitution’s First Amendment protects the “free exercise” of religion, Congress went a step further. The act, passed nearly unanimously, forbids the federal government from substantially burdening the exercise of religion unless it can demonstrate a compelling justification to do so. For years people have argued about whether it is unconstitutional. But the Supreme Court has never had to make the determination, according to Lyle Denniston, who has been covering the Supreme Court for 56 years.
So on Monday, when the court ruled that facilitating employee access to two types of morning-after pills and two types of intrauterine devices would violate the religious beliefs of the owners of three closely held for-profit corporations, it was defining their rights under the Religious Freedom Restoration Act. Those who object to the court’s decision won’t accomplish much by castigating the justices; they should work to change the law.
The court found that requiring the Hobby Lobby arts and crafts retailer and the Mardel bookstore chain, both owned by an Evangelical Christian family, and Conestoga Wood Specialties, owned by a Mennonite Christian family, to provide coverage for four of the 20 Food and Drug Administration- approved birth control methods would “substantially” burden their exercise of religion.
The contraception mandate under the Affordable Care Act would require the companies to either act against their belief that “life begins at conception” or, by not providing the coverage, suffer financial penalties. Obamacare requires companies to be taxed $100 per day for each affected individual if they offer health plans with no contraception coverage. That would amount to up to $475 million per year for Hobby Lobby.
Women at the three companies won’t see a change in their ability to use or afford contraceptives because of the decision. The federal government has already granted a workaround to religious organizations and can do so here, too. And it appears the court sought to prevent slippery slope repercussions; the justices who signed on to the majority opinion wrote that the decision “concerns only the contraceptive mandate” and does not affect “all insurance-coverage mandates, e.g., for vaccinations or blood transfusions.”
Still the public rightly remains concerned about the ripple effects. But with the Religious Freedom Restoration Act on the books, this Supreme Court decision isn’t necessarily a surprise. The recourse is to amend or repeal the law.