Even before the Supreme Court has ruled on the constitutionality of the Patient Protection and Affordable Care Act — a.k.a. “Obamacare” — 43 Roman Catholic organizations have filed lawsuits challenging a related regulation that requires employers or their health insurers to offer birth control coverage to workers. The plaintiffs say that complying with the regulation would violate their religious freedom.
If this litigation does reach the high court, it could force the justices to choose between two lines of cases — one holding that religious groups must abide by generally applicable laws, and another recognizing religiously based exceptions in some circumstances. A decision also could turn on the meaning of the 1993 Religious Freedom Restoration Act, which allows such exceptions unless restricting religious exercise is justified by a compelling government interest.
In our view, increasing preventive care — including the provision of contraceptives, some of which have medical uses beyond birth control — is a compelling interest. We also think the Obama administration has been sensitive to concerns that the contraceptive mandate might undermine freedom of religion. Its regulations exempt churches themselves and, under a new compromise, would shift to insurance companies the cost of contraceptive coverage for employees of religious schools, charities and hospitals. (The church groups fear that cost would still be reflected in their premiums.) The administration says it is exploring ways to provide contraceptive coverage to employees of self-insuring religious institutions without requiring the employers to pay for such services.
These concessions aren’t enough for the Catholic organizations that have complained (a group that does not include the Archdiocese of Los Angeles). They offer an array of legal arguments that resolve into a single contention: that even when it serves the general public and employs nonbelievers, a religious organization must be insulated from rules that govern secular institutions. But the courts have taken a much more limited view. For example, earlier this year the Supreme Court suggested that a lay teacher who hadn’t been commissioned as a minister could sue a religious school under anti-discrimination laws.
In the case of the contraception regulation, one argument focuses on a different question. In the suit filed by the Archdiocese of Washington, D.C., and schools and charities in that city, church officials argue that some of the contraceptives that would be covered by the mandate, including the so-called morning-after pill, induce abortions. As the lawsuit points out, Congress repeatedly has blocked federal funding of abortion services (a policy upheld by the Supreme Court), and President Obama signed an order saying that no executive branch agency would mandate federal funding of abortion.
Abortion aside, the Catholic groups are asking the courts for a blanket exception from democratically enacted laws, and regulations to implement them, that conservative and liberal justices alike may find troubling.