2017-10-11 17:58:11 UTC
Does Reproductive Freedom Mean Forcing People to Sin?
Defenders of Obamacare’s contraceptive mandate give short shrift to
Jacob Sullum | October 11, 2017
Last Friday the Trump administration unveiled regulations that let a wider
range of employers claim a religious exemption from the Obamacare mandate
requiring health plans to cover birth control. Rep. Nita Lowey (D-N.Y.)
responded by invoking The Handmaid's Tale, the Margaret Atwood novel, now a
Hulu series, set in a patriarchal dystopia where the government controls
women's bodies and forbids them to read, write, or work outside the home.
Lowey is not the only critic of the new regulations who conflates freedom
from coercion with a right to forcibly extracted subsidies. Such overwrought
reactions obscure the real issue raised by religious exceptions to the
contraceptive mandate: When does respect for religious freedom require
relieving some people of the obligation to obey rules that everyone else has
Never, according to the Supreme Court, which in 1990 ruled against Alfred
Smith and Galen Black, who were denied unemployment benefits after being
fired from their jobs as drug rehabilitation counselors because they used
peyote in Native American Church ceremonies. Writing for the majority,
Justice Antonin Scalia said letting the First Amendment's guarantee of
religious freedom trump a "neutral, generally applicable law" such as
Oregon's peyote ban would create "a system in which each conscience is a law
That decision rejected the approach that the Court had taken in earlier
cases, which required the government to justify substantial burdens on
religious freedom by showing that they were the least restrictive means of
serving a compelling state interest. The peyote ruling provoked strong
criticism from across the political spectrum and inspired the Religious
Freedom Restoration Act (RFRA), which Congress passed nearly unanimously in
RFRA restored the compelling-interest test that the Supreme Court used until
1990. Although the Court ruled in 1997 that RFRA cannot be constitutionally
applied to state and local laws, it is still binding on the federal
government, and it was the main basis for legal challenges to the
The American Civil Liberties Union, which immediately filed a lawsuit
against the new, broader religious exemption, supported RFRA. Later the
ACLU, whose Oregon chapter helped represent Smith and Black, successfully
argued that RFRA required religious exceptions to the federal ban on the
psychedelic dimethyltryptamine and the U.S. Army's dress and grooming rules.
More recently, however, the ACLU has soured on RFRA, which it describes as
"a sword to discriminate against women, gay and transgender people, and
others." The organization's birth control lawsuit, which argues that the new
rules "give employers license to discriminate against women," does not even
mention RFRA. When it comes to religious liberty, it seems, the ACLU draws
the line at beliefs that offend progressive sensibilities.
The ACLU claims the new birth control regulations let businesses, nonprofit
organizations, and universities "impose their religious beliefs on their
employees and students." New York Times columnist Gail Collins likewise
thinks beneficiaries of the exemption "are trying to impose their own
personal theology on Americans who don't share it."
Contrary to these formulations, employers who do not want to be complicit in
what they believe to be sin are not trying to impose anything on anyone.
They are trying to avoid the government's imposition of a legal obligation
that violates their religious beliefs.
It is hard to see how that imposition can be justified as the least
restrictive means of serving a compelling state interest, as RFRA requires.
In fact, the Supreme Court already has ruled that it can't, at least with
respect to "closely held" private businesses.
Still, Scalia had a point: The government cannot and should not accommodate
every religious belief. A sincere belief in the religious necessity of human
sacrifice, to use a hoary example, does not require an exception to the
definition of murder.
Beyond such easy cases, the justifiable limits to religious freedom are
hazier. Pretending that a six-year-old regulation created a fundamental,
irrevocable right to free birth control does not get us any closer to
figuring them out.
© Copyright 2017 by Creators Syndicate Inc.