In Burwell vs. Hobby Lobby, the United States Supreme Court affirmed the principle that a for-profit corporation owned by people with strong religious beliefs can impose its religious beliefs on its employees, ignoring their employees’ own religious beliefs, as well as the employee’s health interests. The decision deprives their employees of employer-financed insurance coverage for contraception. There was no scientific basis for the corporation’s conclusion that certain types of contraception (the I.U.D, for example) caused abortions, thereby conflicting with the corporation's religious beliefs, but that fact didn’t matter to the Court since, by tradition, the Court doesn’t inquire into the basis of a person’s religious beliefs (and the corporation was treated like a person).
In her dissent, Justice Ginsberg pointed out that the Court’s opinion opens the door to religious employers denying their employees insurance coverage for any type of health care to which their employers object. She specifically referred to blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), medications derived from pigs, including anesthesia, IV fluids and pills coated with gelatin (some Muslims, Jews and Hindus) and vaccinations (Christian Scientists). But, of course, abortion, sterilization, artificial insemination, circumcision and withdrawal of life-prolonging care have all, at one time or another, been objected to by various religions. And that list doesn’t even address the religious believers who claim that their religions forbid them from providing certain types of medical care to certain groups of people, e.g. artificial insemination to lesbians.
The Court based its decision on the conclusion that there was a less restrictive means of accommodating the health interests of Hobby Lobby’s employees. The government had already made available to non-profit religiously affiliated organizations a program in which all they have to do is certify that they object to the mandate, at which point the insurance coverage would be provided to their employees by health insurers free of charge. But just three days later, the Court issued a temporary order (while the court reviews the case more closely) permitting a Christian college to avoid participating in the alternative program because it believed that filling out the government certification, made the college “complicit” in providing birth control to its employees.
So it looks as if religious individuals, as well as corporations owned by religious individuals, can avoid complying with laws that the rest of us must obey. While this might strike you as unfair, religious exemptions from health care have been with us for quite awhile. The Affordable Care Act itself, notwithstanding the many legal challenges to its contraceptive mandate, already excuses certain religious organizations from participating in the insurance mandate at all. Moreover, at least 48 states have religious exemptions from immunizations. At least 38 states (including Pennsylvania) have religious exemptions regarding child abuse or neglect in their civil laws and many states have religious defenses to felony crimes against children. One study concluded that 172 children had died as a result of medical care being withheld on religious grounds. In 1991, there were 492 measles cases in Philadelphia among children associated with Faith Tabernacle and First Century Gospel Church, which refused immunizations. Six children died. (Pennsylvania even has a law providing religious exemptions from bicycle helmets, a common sense public health requirement.)
Numerous federal and state laws have confirmed the right of health care professionals and health care institutions to refuse to participate in various types of medical care, based on their personal religious beliefs. This has left many people, especially in rural areas which are served only by religious hospitals, without access to certain types of care. In 2004, a Pennsylvania woman was forced to have her uterus removed after a physician, based on his religious beliefs, refused to inform her that she needed an abortion due to an infection of her amniotic fluid.
While some of these laws and related court decisions are allegedly grounded in the First Amendment’s protection of religion, others, and the Hobby Lobby case is among them, are based on the Religious Freedom Restoration Act (RFRA). Ironically, RFRA was passed by Congress as a reaction to another Supreme Court decision, Smith Div. v. Smith, decided back in 1990. In Smith, the Court upheld the denial of unemployment benefits to two drug counselors who had smoked peyote as part of a religious ritual and were fired as a result. Justice Scalia wrote the majority opinion in that case, concluding that the First Amendment didn’t relieve someone from complying with a law that incidentally forbids the performance of an act that his religion requires as long as the law wasn’t aimed solely at the performance of religious acts and is otherwise generally applicable. He even pointedly commented that permitting an individual to avoid obeying a law due to his religious beliefs would allow an indiviudal "to become a law unto himself.” Unfortunately, due to Congress’s passage of RFRA in the meantime, Justice Scalia’s logic in Smith didn’t win the day in Hobby Lobby.
To combat governmental interference with religious rituals, RFRA sets a very high bar for a governmental entity to pass before being able to enact a law that affects religion. In the case of Hobby Lobby, this meant that the strong governmental interest in protecting women’s health did not outweigh the interference with Hobby Lobby’s religious beliefs, since the government had other ways to provide insurance coverage for contraception to protect women’s health. The fact that Hobby Lobby’s religious objection to certain forms of contraception had no basis in scientific reality was not considered by the Court.
This refusal to examine the basis for someone’s religious beliefs, coupled with the high bar set by RFRA, leaves us in the state we’re in today: vulnerable to the imposition by individuals, institutions and corporations of their religious beliefs on the rest of us, however farfetched they might be and however inconsistent they might be with our own religious beliefs. Let’s just hope that there isn’t an employer out there who refuses to pay for insurance coverage for pain relief since it believes that experiencing pain is an important step in the ladder to heaven.
Isn’t it time we asked ourselves whether Justice Scalia’s conclusion in Smith wasn’t right after all, that is, everyone should have to comply with neutral laws of general applicability, without regard for their religious beliefs? At the very least, shouldn’t those who believe that a law poses a “substantial burden” on their religious beliefs have to do something to support their position more than merely assert it?
Martha Swartz, JD is a health care attorney practicing in Philadelphia and an adjunct professor at Rutgers-Camden School of Law.
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