On Wednesday, Supreme Court Justice Samuel Alito opened a Pandora’s box that has the potential to give some corporations the right to impose their “deeply held” religious objections to birth control on other corporations.
Remember when the owners of Hobby Lobby convinced the Supreme Court their company has strongly held religious beliefs and as such, should be exempt from the Affordable Care Act’s contraceptive mandate?
The same day, the Obama Administration announced a fix to a similar objection raised by non-profits, which also apparently had strongly held religious beliefs about women’s reproductive rights. The Non-profits could fill out a form, declaring their religious opposition to contraception and identifying the company that provides their health care insurance. This fix meant the government could work with the insurance provider to ensure that the non-profit’s employees would have coverage for contraceptives.
As a side note, I find it extremely convenient that “strongly held” religious beliefs never entail imposing restrictions on men’s access to healthcare services. But I digress.
When the Supreme Court ruled on Hobby Lobby, it left people, including dissenting Supreme Court Justices, with the impression that the form fix would pass constitutional muster.
Four days later, the same court came out with another ruling in the case of Wheaton College v. Burwell. In short, Wheaton College argued that filling out the form would make it a birth control enabler and conflict with the college’s “deeply held” religious beliefs. The court ruled with the college, at least temporarily. In her dissent, Justice Sotomayor did not mince words when she said: “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Because that ruling was temporary, the question of whether the Court will allow artificial persons to deny the natural persons they employ of birth control coverage based on the artificial person’s “religious beliefs” remains unresolved.
Currently, if a for-profit or non-profit entity objects to filling out a form, they can write a letter stating their religious objections and the identity of their insurance administrator.
This brings us to Justice Alito’s ruling on Wednesday. Alito stayed the Third Circuit’s ruling in Zubik v. Burwell. In short, the Third Circuit Court upheld the Obama administration’s rules pertaining to religious non-profits that want an exemption from the contraception mandate. But Alito suspended that ruling because apparently writing a letter or filling out a form is unacceptable to these artificial persons with such strongly held religious beliefs.
So here’s where we are at the moment. Artificial persons claim their “strongly held” religious beliefs gives them the right to be exempt from a law that mandates employers to provide their employees with contraceptive coverage as part of their healthcare coverage. However, declaring their religious objections and providing the government with the name of their insurance administrator would somehow make the artificial person “complicit” in the big scheme of natural persons they employ getting birth control. Like most sane people, judges in the lower courts haven’t been buying this argument.
In fact, the Third Circuit stated the true nature of this legal fight in its ruling.
Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” Thus, the plaintiffs’ “real objection” isn’t to sending a form or letter to the federal government; it is what happens after the form is provided – that is, to the actions of the insurance issuers and the third-party administrators, required by law once the [plaintiffs] give notice of their objection.
Federal law does not give these plaintiffs “a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.
In short, the plaintiffs are not satisfied with imposing their “deeply held” religious beliefs on their employees. They want the power of a religious veto to impose their beliefs on health insurers and third party administrators.
It is very likely that Alito’s order is a warning that the Supreme Court is ready to expand the meaning of an artificial person’s “religious freedom” beyond imposing it on the natural persons it employs. It’s very likely that some on the Court hope to empower “religious” corporations to enlist government as the enforcer of a religious veto against legally mandated actions by third parties.
This never was about corporations with religious beliefs, strongly held or otherwise. If it were about religious conviction, the companies in question would be satisfied to state their objection, get their exemption and be done with it. As the Third Circuit noted, the objection is about what happens after the company states its objection. That is the difference between the freedom to practice one’s religion and the tyranny that entails imposing a religious belief on unwilling subjects.
Ms. Woodbury has a graduate degree in political science, with a minor in law. She is a qualified expert on political theory with a specific interest in the nexus between political theories and models and human rights.
Based on her interest in human rights and the threats that authoritarian regimes are to them, Ms. Woodbury’s masters thesis examined the influence of politics on the enforcement of international criminal law was cited in several academic studies.
Published work includes case summaries for the War Crimes Research Office.
She has an extensive background doing legal research in international and domestic law.
Ms. Woodbury’s work for politicusUSA includes articles on voting rights, the right to asylum and other civil/human rights.