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Religion and general law

This is a quick note specifically discussing whether the contraceptive requirements in the Affordable Care Act implemention are unconstitutional.

For those that don't know (and where have you been?), "Obamacare" requires that companies that provide healthcare have to offer contraceptive services without co-pay.  There are some exceptions (small businesses; organizations with religious missions, employees, and clients; grandfathered plans), but let's ignore them.  Some private companies are suing because they say this mandate forces them to pay for services that they find morally repugnant.

The first court to hear the case on its merits (as opposed to dodging the question for various procedural reasons) gave a pretty resounding "No":  This does not substantially restrict religious freedom.  In, O'Brien v. HHS (http://docs.justia.com/cases/federal/district-courts/missouri/moedce/4:2012cv00476/119215/50/0.pdf?ts=1348931108), the district court said "The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

"RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own."

Does this make sense?  I think it does.  What the court appears to be arguing is similar to a tax argument.  I thought the invasion of Iraq was an immoral, stupid act that would cost countless lives, money, and goodwill ... but my tax dollars still paid for it.  Any money that goes to funding medical care for military veterans probably irritates the Society of Friends (Quakers), Scientologists, and Jehovah's Witnesses (at least if someone gets blood).

For health insurance, we have a system that requires large employers to offer insurance.  This requirement dramatically lessens the likelihood of a true market in insurance (and this is where I, personally, think our policies are wrong).  Once you start down that path, you have effectively limited the ability of people to get health insurance elsewhere, especially if they have health problems.  Where do you get your insurance?  Probably from your employer.

And who pays for the insurance?  In most instances, the employer partially subsidizes the costs, as a whole, and the employee pays various premiums, co-pays, and other fees as needed.  When I go to get my appendix out, I don't think about what my employer wants -- to me, the employer is a convenient grouping for price control, and the money that that employer pays toward my insurance is part of my salary, not them paying for my appendectomy.  I would find it very odd if they decided I didn't need the appendectomy and therefore decided not to subsidize my insurance anymore, and I would even wonder why they KNEW I was getting an appendectomy.  (Specifically, at least -- generally knowing that people are getting appendectomies is certainly important to them.)

But what those that are fighting these plans are arguing is that they feel it is their right to prevent their employees from using the insurance the way the employees see fit.  The employer wants to use the power of the purse, in other words, to prevent someone else's exercise of religion.  (That would be more tenable if there were a market for healthcare because the employee could simply make another choice, but our system does not allow this.)  This is not exactly the spirit of the 1st Amendment.

In any event, none of the plaintiffs appear to have shown that they were at all burdened, financially, here.  They don't argue that they are prevented from telling their employees how bad contraception and abortifaciants are, or that the employees are being compelled to use these services, or anything of the sort.  It's just that the insurance will now cover it, and the employers are part of the process.

This sort of avoidance of a generally applicable law is exactly opposite to the traditional religious freedom tests, and I seriously doubt that SCOTUS will find this unconstitutional.

A more interesting question, in my opinion, is whether a corporation can "practice" religion in the first place.  If a lower court holds that it can, I wonder if this might be the straw that pushes SCOTUS to reconsider the "personhood" of corporations.

Thoughts?



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