You Don’t Like it? I Don’t Buy It!

    In The Little Sisters of the Poor Saints Peter and Paul Home v Commonwealth of Pennsylvania and State of New Jersey the Supreme Court faced a divisive decision to make, to support female reproductive rights, or to allow these taxpayer funded institutions  to discriminate on grounds of their religious faith. Or at least this is what the media would have you believe, however, as is often the case with cases that make it to the Supreme Court there are more layers to this cases than those that make it to the headlines. Researching the origins of this case leads us to the Affordable Care Act (ACA) and its requirement of employers to, “provide women with “preventive care and screenings” without “any cost sharing requirements,””(Supreme Court Syllabus). When these guidelines were incorporated, they were written to include accommodations to religious organizations who objected to paying or being involved in the provision of contraception in their health care options, which would now be handled through a third party. The grounds to meet the exemption was lowered through the cases Burwell v Hobby Lobby Stores, Inc., and Wheaton College v Burwell, now institutions simply had to notify the Department of Health and Human Service (HSS) to receive the exemption. In 2017 the HHS again expanded the scope of the exemptions, adding the infamous ‘moral’ exemption. Presented to the Court was a question of whether the Religious Freedom Restoration Act permitted the religious and moral exemption. Regarding the religious accommodation I agree with the decision of the court, it is clearly allowed for in the language of the statue, and constitutionally consistent. I cannot, however, stomach the moral exemption or the total religious exemption so easily. Regarding the total religious exemption, as Justice Kagan says in concurring opinion that the exemption had grounds when regarding groups such as the Little Sisters who sought to distance themselves from contraception totally. When extended to employers who did not have such qualms about complicity with contraception however, the new ease of receiving exemption was an overreaction that would harm tens of thousands of women,” The rule thus went beyond what the Departments’ justification supported—raising doubts about whether the solution lacks a “rational connection” to the problem described.” 

    The late Justice Ginsburg furthered this position and addressed the moral obligation in her dissent. While there is much I find fault with in her dissent, I agree wholeheartedly with her dispute of the genesis of the moral exemption,” HRSA’s expertise does not include any proficiency in delineating religious and moral exemptions. One would not, therefore, expect Congress to delegate to HRSA the task of crafting such exemptions.” Hitting the nail on the head again when talking about the various governmental organizations responsible for authoring the exemptions she writes,” The blanket exemption for religious and moral objectors to contraception formulated by the IRS, EBSA, and CMS is inconsistent with the text of, and Congress’ intent for, both the ACA and RFRA. Neither law authorizes it.” 

    I agree with the constitutionality of a blanket exemption only in the case of,” houses of worship, “their integrated auxiliaries,” “conventions or associations of churches,” and “religious order[s]” as Ginsburg writes. I agree with an accommodation as defined earlier for those institutions who self-report as was the standard prior to the Wheaton College v Burwell case. In my opinion this is a least restrictive means of burdening religiously conscious institutions with a compelling government interest, contraceptive healthcare in this case. Regarding the moral exemption against the provision of contraceptive healthcare, I disagree wholly with its use. Considering the importance of this issue, which is great, the provision of contraceptive healthcare for more than 100,000 women, the balance of religious exercise and state interest must be drawn carefully. It is my position that this moral exemption was drawn lazily, much closer to a corporate break than a protection of free exercise. It is built into our Constitution that religion and religious belief holds a special place in our country, privileged in its protection relative to secular beliefs. As we know from United States v Seeger, a belief in any Supreme Being which denounced military participation was sufficient to receive a service exemption. In Seeger the Court made sure to distinguish religious from political, sociological, or philosophical belief. The moral exemption could not have been made with Seeger in mind, nor the doctrine of least restrictive means. Those two pillars have would have already been fulfilled by the religious exemption and accommodations. In our case now, I can see the moral exemption as totally unfounded, let alone able to be protected by the First Amendment or the RFRA.