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The dangerous idea at the heart of Trump’s latest attack on birth control

Hobby Lobby, but with less rule of law.

CREDIT: AP Photo/Mary Altaffer
CREDIT: AP Photo/Mary Altaffer

The Trump administration is poised to roll back access to birth control by severely weakening Obamacare’s contraceptive mandate — and, at the same time, dangerously weakening the distinction between “religious” objections and “moral” objections to reproductive health care.

During the Obama years, the birth control wars largely focused on the tension between people seeking contraceptive coverage and religious employers who object to birth control in some form or another. Both Burwell v. Hobby Lobby and Zubik v. Burwell, the two contraception cases heard by the Supreme Court in the last several years, involved employers who objected to providing birth control coverage on religious grounds.

Yet a handful of hardliners — the March for Life, the Alliance Defending Freedom, Justice Samuel Alito — have tried to blur the line between religious objectors and moral objectors. While cases like Hobby Lobby and Zubik involved claims that people with religious objections to the law often have the right not to follow it, the hardliners would extend this right of defiance to people who raise moral objections not rooted in religious belief.

That’s a major shift that would seriously undermine the efficacy of the law as a whole. And, in a document leaked to Vox’s Dylan Scott and Sarah Kliff, the Trump administration appears to embrace this shift. Under the rule described in this document, employers who do not want to provide birth control coverage to their employees will be permitted to do so so long as they claim that doing so would violate their “moral convictions.”

Moral danger

Regulations implementing the Affordable Care Act provide that most insurance plans must cover contraceptive care without “any cost sharing requirements.” It’s largely uncontroversial, moreover, that there should be an exemption to this rule for some employer-provided plans offered by religious employers — although the Obama administration and the Supreme Court fought over how large this exemption should be.

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Any kind of religious exemption will be relatively narrow in scope when compared to a broader exemption for anyone who opposes a law on moral grounds. Though the law allows people with idiosyncratic religious beliefs to seek exemptions, most religious objectors act within a faith tradition with known, predictable rules. Most people of faith aren’t going to suddenly develop a new religious belief simply because it is a convenient way to avoid following the law.

Moral views, by contrast, are both more flexible and more unpredictable. Consider, for example, Eden Foods v. Burwell. Though the owner of the company at the heart of the Eden Foods case initially claimed a religious objection to providing birth control to his employees, he later admitted that his real objection was more moral than religious.

“I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Eden Foods CEO Michael Potter told reporter Irin Carmon. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.”

In a legal regime that only allows religious exemptions, Eden Foods’ lawsuit should not prevail (although it is worth noting that the Justice Department decided to stop fighting this suit, effectively handing Eden Foods a victory). In a legal regime permitting moral objections, however, Potter’s general disdain for government is probably enough to prevail.

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Indeed, under the rule that is reportedly under consideration by the Trump administration, any employer could ignore the requirement to provide birth control coverage to their employees by claiming that they have a moral objection to government action generally.

How far will this go?

On its face, the Trump administration’s document limits its new rule to contraception. That is, it doesn’t give moral objectors a general right to ignore any law, only a right to ignore certain Affordable Care Act regulations governing birth control.

Philosophically, however, the document takes an expansive view of when moral exemptions are appropriate — a view that could have sweeping implications for the rule of law in the United States.

The Trump administration’s document compares a moral exemption for people who object to birth control to the longstanding protections offered to conscientious objectors in wartime. As the document notes, the Supreme Court established in 1970 that a person with strongly held objections to war may be a conscientious objector, even if that objection is not based in faith. As Justice Hugo Black wrote for a plurality of the Court in Welsh v. United States,

If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by . . . God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption under § 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

Wartime conscientious objection, however, is a unique kind of moral objection. When the government drafts someone into war, they are effectively compelling that person to kill on command. It is also drafting that individual into a military unit where each member’s safety may depend on their comrades’ total commitment to the mission. Under these extraordinary circumstances, something as exceptional as a moral exemption from the law may be justified.

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Conscientious objection, it is also worth nothing, comes with a hefty price. A conscientious objector still must serve either as a noncombatant within the military or in a civilian role “deemed to make a meaningful contribution to the maintenance of the national health, safety, and interest.” The Trump administration’s document imposes no similar cost on people who assert moral objections to birth control.

Even more significantly, the document’s reliance on Welsh suggests that the right to ignore laws that someone has a moral objection to could extend well beyond birth control.

Welsh established that someone with deep non-religious moral objections should receive the same legal protections that already existed for a someone with a religious objection. If that rule extends beyond wartime conscientious objection, it would profoundly remake the American legal landscape.

That’s because, under the Religious Freedom Restoration Act, the government may not “substantially burden a person’s exercise of religion” except in very limited circumstances. Apply that prohibition to moral objections and someone with deeply held libertarian convictions, for example, could claim broad immunity to a wide swath of laws. Eden Foods CEO Michael Potter could immunize himself from a bevy of business regulations, simply by asserting a strong moral objection to obeying the government.

First do no harm

Such an expansive view of moral exemptions to the law would be even more transformative in the wake of the Supreme Court’s Hobby Lobby decision.

As the Trump administration notes in its document, moral objector protections do already exist in some areas of health policy. A 1973 law, for example, permits certain health providers to refuse to perform abortions.

As a practical matter, however, if one doctor refuses to perform abortions, another doctor is likely to be willing to do so. The 1973 law does not cut off women’s access to abortion as the cost of affording a particular right to moral objectors.

This 1973 law, in other words, largely tracks the legal regime that existed prior to Hobby Lobby. Under that regime, religious objectors enjoyed an expansive right to object to laws that burden their faith, but they could not use such an objection to harm a third party. Thus, for example, a doctor could object personally to performing abortions, but they could not wield their objection as a sword to prevent women from seeking abortion care elsewhere.

Hobby Lobby held, for the first time, that a religious objection gives someone the power to limit the rights of others. An employer could potentially limit their employees’ access to birth control under Hobby Lobby, thereby allowing the employer’s religious objection to harm someone else.

That was a major shift in longstanding legal doctrine — but, if Hobby Lobby’s rule permitting third-party harms were combined with a rule permitting broad moral objections to the law, it would be a legal tsunami. In that world, an employer could potentially claim a broad moral objection to obeying the government, then use that objection to mistreat (or underpay) their workers.

Enter Justice Alito

At least for the moment, the Trump administration’s document is limited in scope. It permits moral objections to birth control, not moral objections to any law that a business owner claims to be repugnant.

Last year, however, three Supreme Court justices joined an opinion which suggests they may wish to blur the lines between moral and religious objections far more than the Trump administration’s document permits.

Stormans v. Wiesman involved a Washington State rule that requires pharmacies to “deliver lawfully prescribed drugs or devices to patients.” The owners of a particular pharmacy objected to this rule because they claimed a religious objection to dispensing birth control.

In an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas, however, Justice Alito suggested that religious objections and moral objections are one and the same. “The [Washington State Board of Pharmacy] has specifically targeted religious objections,” Alito claimed. “Upon issuing the regulations, the Board sent a guidance document to pharmacies warning that ‘[t]he rule does not allow a pharmacy to refer a patient to another pharmacy to avoid filling the prescription due to moral or ethical objections.’”

There is, to be fair, a bit of a semantic difference between Alito’s move in Stormans and the Trump administration’s apparent move on birth control. The Trump administration wants to equalize certain rights between moral and religious objectors, while Alito appears to think that a moral objection is a form of religious objection.

As a practical matter, however, this difference doesn’t matter much. Alito’s opinion in Stormans suggests that three justices want to, at the very least, wipe away many of the distinctions between moral and religious objectors — if not necessarily eliminate all of these distinctions.

In a post-Hobby Lobby world, that will make it very difficult to ensure that the law applies evenly to all.