In a significant escalation of the birth control wars, a federal judge held on Monday that employers who object to contraception can refuse to include birth control coverage in their employees’ health plan — even if their objection to birth control has nothing whatsoever to do with religion.
Judge Richard Leon is a George W. Bush appointee with a history of handing down conservative opinions. His opinion in March for Life v. Burwell is no exception. In it, Leon holds that the March for Life Education and Defense Fund, an anti-abortion group which claims to be non-religious, may refuse to comply with federal rules requiring employers to include certain forms of contraception, even though their objections to birth control are entirely secular.
Leon’s reasoning on this issue is, frankly, hard to follow. It is even more difficult to summarize in writing. In essence, however, Leon appears to object to the government’s decision to exempt churches and other inherently religious organizations from the birth control rules without also extending this exemption to secular employers because such a rule discriminates against secular employers.
The problem with this argument is that the Supreme Court has explicitly held that when the government “acts with the proper purpose of lifting a regulation that burdens the exercise of religion” there is “no reason to require that the exemption come packaged with benefits to secular entities.”
In an apparent attempt to work around this Supreme Court decision, Leon digs up two obscure sentences published by the federal government which note that “houses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers” to employ people who share the same view. From this statement, however, Leon deduces that the government’s real purpose in exempting certain religious employers from the birth control rules was actually to protect “a moral philosophy about the sanctity of life.” It is an extraordinary leap of logic that, even if it did reach a sound conclusion, does not obviously lead to Leon’s ultimate legal conclusion that a religious exemption must come packaged with benefits to secular entities. And yet Leon reaches this conclusion, regardless.
A separate section of Leon’s opinion sides with two March for Life employees who claim that they should be allowed to purchase an employer-provided plan that does not offer birth control coverage because they have religious objection to “participating in a health insurance plan that covers” certain forms of contraception. In a post-Hobby Lobby world, this is not a frivolous claim — although it is far from a slam dunk. In any event, the appropriate remedy if these two plaintiffs ultimately prevail is to grant them — and only them — the right to purchase a plan that does not otherwise comply with federal law.
Leon’s first conclusion that secular employers may exempt themselves from a federal rule they wish not to follow, however, goes far beyond what the Supreme Court said in Hobby Lobby.