Shortly after the Obama Administration announced its new rules to help ensure all women have adequate access to birth control, conservative lawmakers denounced it as unconstitutional under the First Amendment guarantee of religious liberty. This argument is meritless. As conservative Justice Antonin Scalia explained in Employment Div. v. Smith, a law that applies evenly to the faithful and the non-faithful alike does not violate the First Amendment.
In light of this fact, the rules’ opponents have wisely pivoted to a 1993 law known as the Religious Freedom Restoration Act (RFRA) which imposes additional restrictions on the federal government above and beyond what’s actually required by the Constitution. Indeed, the several conservative Catholic groups challenging the birth control rules in court cite RFRA in their very first claim against the rules.
RFRA was enacted very much due to a backlash against Justice Scalia’s opinion in Smith. That case involved a relatively obscure Native American religion whose members wanted to ingest the illegal drug peyote during one of the faith’s sacred rituals — Scalia’s opinion said they were not exempt from this law because the ban on peyote applies evenly to all persons regardless of whether they believe the drug has a sacred purpose or not. RFRA’s supporters, including some very prominent progressives, feared that Scalia’s decision would fall heavily on minority religions because they lacked the political power to stand up for themselves in the legislature. Lawmakers who support a ban on sacramental wine, for example, would soon run afoul of their many (and often, powerful) Christian constituents. But lawmakers who want to ban drugs used in relatively uncommon faiths would experience no such backlash.
For this reason, the conservative Catholics’ suit is a bit unusual since they are not the kind of minority faith that many of RFRA’s supporters sought to protect. The Catholic bishops who are driving this effort are politically powerful, so powerful, in fact, that top political leaders like Speaker John Boehner (R-OH) have rallied to their cause. Nevertheless, there’s nothing in the language of RFRA itself which prevents powerful religious groups from invoking it. Under RFRA, the federal government cannot “substantially burden a person’s exercise of religion” unless the law that does so:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest
Even assuming that the birth control rules “substantially burden” conservative Catholics, however, there are strong arguments that the rules survive RFRA’s test. In Roberts v. United States Jaycees, the Supreme Court established the government has a “compelling interest in eradicating discrimination against its female citizens,” and extending access to birth control clearly advances this goal. As the California Supreme Court explained when it upheld a very similar birth control law in 2004, “women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in part to the cost of prescription contraceptives and the various costs of unintended pregnancies.” Expanding access to contraception targets this problem directly.
The more difficult question is whether the Obama Administration’s rules use the “least restrictive means” of achieving its goal — meaning that there is no way to accomplish the same goal without placing the same burden on religious exercise. In the California suit, the plaintiffs claimed that California could have simply created an entitlement program that provides contraception, rather than enacting a law that led to religious employers paying health insurance premiums that covered some women’s birth control. The Obama Administration’s opponents make a similar argument now, that conservative Catholic employers object that a portion of their premium payments would go to contraception, while an entitlement program would not raise this problem.
This is only half true, however. While it is true that conservative Catholics would not have to pay premiums that cover birth control if the government created an entitlement program, conservative Catholics would still pay taxes that fund that entitlement program. It’s not at all clear why one places a different burden on the rules’ religious objectors than the other.
So there are strong arguments in favor of the birth control rules — strong enough, in fact, that one of the most Republican courts in the country upheld a very similar California law just eight years ago. Of course, that was before the Roberts Court indicated they might embrace an utterly meritless case against the Affordable Care Act, so there is always a risk that partisanship will trump law if this case reaches the Supreme Court. Assuming the justices are in the mood to follow the law, however, the administration has a strong argument to offer against the RFRA challenge.