Section 2713 of the Public Health Service Act, enacted by the Patient Protection and Affordable Care Act (Public Law 111-148) provides:
“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— . . . (4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration . . . .”
The referenced regulations then require “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
Those provisions, the plaintiffs argue, conflict with deeply held religious beliefs and practices.
The lawsuit raises an interesting question of where to draw the line between religious services and more secular activities by religious institutions. While a church is protected by the free exercise clause, it is also part of a large non-for-profit corporation. In the case of the Catholic Church it is a major employer and the operator of a host of different activities.
The lawsuit by Notre Dame states that “[t]he government…cannot justify its decision to force Notre Dame to provide, pay for, and/or facilitate access to these services in violation of its sincerely held religious beliefs. If the government can force religious institutions to violate their beliefs in such a manner, there is no apparent limit to the government’s power.” That is far from evident. Existing case law would in my view support the Administration in mandating a generally applicable rule on this kind. The courts have been admittedly reluctant to draw lines between protected religious activities and non-protected activities of religious institutions. However, the slippery slope argument may go the other way: if the government cannot require this type of insurance coverage what would such a holding mean for the future of regulations in the health care and other areas. The Senate previously split 51-48 on getting rid of the contraception requirement and the lawsuit is likely to result in further erosion of support for Obama among Catholics.
One of the most difficult hurdles for the plaintiffs is the decision in Employment Division v. Smith, 494 U.S. 872 (1990), where the Supreme Court ruled that a state could deny unemployment benefits to a person terminated for using of peyote. That decision was written by one of the justices that the Plaintiffs are likely most counting on in an eventual argument before the Supreme Court — Justice Scalia. Scalia upheld the law as a “neutral law of general applicability.” Notably, he relied on the very inverse slippery slope argument above: “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.” The Court drew the distinction between laws prohibiting physical acts of worship and such neutral rules. The case does not rule out a possible ruling in favor of these plaintiffs, but it (and other cases) give the advantage to the government.
Clearly, the plaintiffs have the advantage of the Religious Freedom Restoration Act (“RFRA”), which imposes a heavy burden on the government when they can show that a regulation substantially burdens their exercise of religion, even if the burden results from a rule of general applicability. However, there remains the question of substantial burden and the possibility that the government can show a compelling interest in light of the slippery slope danger. There are thousands of different religious organizations in this country with countless religious practices and values that might become the basis for claimed exceptions. Such a ruling would have sweeping implications for state and federal regulations across the country.
Here is a copy of the complaint: complaint-final
Source: Wall Street Journal