The U.S. Supreme Court is right now considering whether the federal government can force hundreds of religious organizations to choose between violating their consciences and paying astronomical fines. In no small way, religious liberty itself hangs in the balance.
How could this come to be?
In March 2010, President Obama signed the Patient Protection and Affordable Care Act, commonly known as "Obamacare." Among many other things, it required many employer-sponsored health plans to cover women's "preventive health services."
Adopting the recommendation of a private, agenda-driven Institute of Medicine, the U.S. Department of Health and Human Services declared that the statute required plans to cover "all Food and Drug Administration-approved contraceptives," theorizing (with scant evidentiary support) that such coverage would reduce the adverse health effects allegedly associated with unintended pregnancies.The FDA has approved 20 drugs and devices it calls "contraceptives," four of which sometimes prevent implantation of a very young human being in the uterine wall — and thus cause early abortions.
The administration understood that requiring employers to provide contraception and abortion would violate the religious beliefs of countless faith-based organizations. But that understanding did not translate into adequate action.
An exemption for which Jesus' ministry would not have qualified
HHS crafted an extraordinarily narrow religious exemption, available only to churches, denominations, religious orders and what the tax code calls "integrated auxiliaries." Tens of thousands of thoroughly religious parachurch organizations were left unprotected from a government edict requiring them to violate their deepest convictions. Arguably, Jesus' own ministry would not have qualified.
HHS subsequently offered these groups an alternative way of complying with the mandate, falsely claiming that it satisfied their religious objections. If these religious organizations refused to comply, the IRS would impose unsustainable annual fines running into the millions.
The courts weigh in
Religious non-profits filed 56 lawsuits challenging the mandate, primarily under the federal Religious Freedom Restoration Act. The vast majority of federal trial courts held that the mandate imposed substantial and unjustified burdens on religious exercise, faithfully applying Burwell v. Hobby Lobby and Conestoga Wood Specialties v. Burwell, cases in which the Supreme Court held that the government violated RFRA by imposing the mandate on for-profit businesses that objecting Christian families owned.
Unfortunately, things were different at the courts of appeal: All but one circuit ruled for the government, accepting its argument that religious employers were wrong — as a matter of religious analysis — that their faith forbids them from playing their government-dictated role in providing objectionable drugs. Oddly, those courts accepted the argument that the government knew better about the religious beliefs of these ministries than the ministries themselves did.
In a group of cases collectively known as Zubik v. Burwell, including the Alliance Defending Freedom cases Southern Nazarene University v. Burwell and Geneva College v. Burwell, the Supreme Court took up the issue.
Shortly after the March 23 arguments, in a highly unusual move, the high court asked the parties to submit supplemental briefs addressing whether some other way might exist for the abortifacient and contraceptive drugs and devices to be made available without involving the objecting religious employers. The religious challengers said yes, but the government essentially said no, unwilling to relinquish its untenable claim that religious employers must remain involved.
The Supreme Court is expected to issue a decision by the end of June. If the justices split 4-4, the court could elect to schedule the case for reargument when a ninth justice is back on the bench.
The stakes are high and clear
For the religious organizations involved — ranging from an order of nuns, to religious colleges and universities, to faith-based social service agencies—the stakes are clear. If the Supreme Court does not rule their way, they will face an unenviable choice: Either comply with your faith and pay unsustainable fines, or comply with an unjust law and transgress those beliefs.
But that's not all. First, if the administration can force religious employers to provide abortifacients and contraceptives, it's not difficult to imagine the federal or a state government dictating that employers cover other morally objectionable drugs and procedures, such as elective surgical abortions. Indeed, one need not imagine it; the state of California has already done precisely that.
Second, it's no exaggeration to say that religious freedom itself in many ways hangs in the balance. The government is arguing that it has the power to second-guess a religious claimant's conclusion that complying with a particular law violates its religious beliefs. The courts have traditionally respected a religious person's interpretation of his faith's commands. The administration is urging the Supreme Court to abandon that long tradition in the interest of expanding its power over the faithful.
When laws clash with religious exercise, a balancing of competing interests is almost always necessary. Sometimes close cases arise, but this is not one of them. The government is imposing enormous pressure on religious organizations to perform acts contrary to their faith. And available evidence plainly indicates that the government's violation of religious liberty, tragically, will not advance its stated goal of reducing unintended pregnancies.
Even more frustrating is the government's steadfast unwillingness to consider win-win solutions. One would hope that the Supreme Court would not affirm such behavior but would instead vindicate, not only the religious organizations' compelling claims, but also religious freedom itself.
David A. Cortman and Gregory S. Baylor are attorneys with Alliance Defending Freedom who represent four Oklahoma Christian universities and a Pennsylvania Christian college in the consolidated non-profit abortion-pill mandate cases at the U.S. Supreme Court. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.