Obamacare Opens Can of Worms Over Religious Freedom in America

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The issue of religious freedom is getting a large amount of press time in the United States — with one portion of the Affordable Care Act, the requirement that companies subject to the employer mandate provide workers with policies covering contraception, heading to the Supreme Court. One of the explicit purposes of the healthcare reform was to improve the quality of health insurance policies. To guarantee that insurers no longer offer the so-called bare bones plans, the Affordable Care Act mandated the policies provide ten essential benefits, including mental health care and contraceptives. While ostensibly a sweeping attempt to ensure all Americans have access to the services they need without having to pay an unaffordable premium, religious groups have seen the mandated insurance coverage of contraceptives, including potential life-ending drugs like the Plan B pill, as a threat to religious freedom.

In November, the Supreme Court agreed to examine another challenge to the constitutionality of the Affordable Care Act. After President Barack Obama signed the healthcare reform into law on March 2010, fourteen state attorneys general filed lawsuits against the law’s require that most Americans to purchase health insurance on the grounds that it was unconstitutional. But in July 2012, Chief Justice John Roberts sided with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer, and Elena Kagan in deciding the law — which requires that Americans who can afford to buy health care insurance do so or face a tax penalty — as a valid exercise of Congress’s power to tax.

Since the law’s passage, nearly 50 pending lawsuits have been filed in federal court from various corporations challenging the birth control coverage mandate, and three federal appeals courts in Chicago, Denver, and Washington D.C. have struck down the contraception coverage rule while two other appeal courts have upheld the provision. The fact that there was a “circuit split” made a Supreme Court review even more likely, even though the court agreed to hear only two particular cases involving for-profit corporations: the craft store chain Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp.

At the most basic level, the court’s ruling will decide whether employers with religious objections to birth control may refuse to provide their workers with insurance that offers contraceptive coverage. But the case will also provide the Supreme Court an opportunity examine complex legal and constitutional questions about religious freedom, the equality of female workers, and whether any protections exist in the constitution or in federal statutes that excuse private, for-profit corporations from complying with the law because of their owner’s religious beliefs. These questions have preoccupied lower courts in recent months, just as they will engross the Supreme Court in coming months; oral arguments will likely be held in March with a ruling coming in late June.

Since the Supreme Court bases its rulings on the precedential application of laws in the past as well as its interpretation of legal doctrine, how the conservative-leaning Roberts court and previous courts have dealt with the issue of religious freedom is important. If the majority stands by precedent, especially the United States v. Lee lawsuit, it seems likely that the Supreme Court will dispose of the two cases brought against Department of Health and Human Services Kathleen Sebelius, Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius.

Edwin Lee was a Pennsylvania Amish farmer and carpenter who contended that the federal payroll tax was a “burden” on his rights under the Free Exercise Clause of the First Amendment, which states that the government cannot place any restraint of the free exercise of religion. His case argued that such a tax was “forbidden” by the Amish faith and therefore its payment interfered with the exercise of his rights. But while the Court did rule that the tax violated his belief system, it unanimously held that, “The broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the law.”

Plus, the Court said, exempting objectors from paying the payroll tax for employees would “impose the employer’s religious faith on the employees.” The opinion stated that, “When followers of a particular sect enter into commercial activity as a matter of choice the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity.”

The plaintiffs in the Supreme Court’s contraceptive cases have made similar arguments. Even though employers pay for the insurance program, and not the pills themselves, and the use of contraceptives is a private medical decision, the plaintiffs stated in court briefs filed February 10 that the clause still restricts their religious rights. They “object to being forced to facilitate abortion by providing abortifacients, and that objection does not turn on the independent decisions of their employees,” stated the papers. Not only did the Court decide in United States v. Lee that commercial activity limits the degree to which companies can use their religious beliefs as an excuse for refusing to comply with government law, other court rulings have gone so far as to knock down the “facilitate” argument. Previous decisions have determined that a company has suffered no injury — meaning it cannot bring a lawsuit — based on objections to how an employee spends his or her wages or other compensation, which includes insurance benefits.

More broadly, the First Amendment’s Establishment Clause prohibits taxpayers to be forced into paying tax money into the coffers of a religious organization. That religious guarantee was the result of a decision authored by James Madison in the 1785 Memorial and Remonstrance, in which he ruled that state-levied taxes to support churches was a violation of the constitution. He wrote, “Who does not see that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

While the Supreme Court has never once attempted to argue that the Establishment Clause prohibits tax support for religious organizations, several decisions made in the past thirty years added shades of gray, including the Roberts Court’s 2011 decision to dismissed a case brought by Arizona taxpayers alleging that the state’s Tuition Tax Credit violated the Establishment Clause of the First Amendment. That credit gave taxpayers a reduction in their tax liabilities for their donations to school tuition organizations that gave scholarships to students of particular faiths to attend certain religious schools. That rule may seem to set out a different precedent strand then did 1981′s United States v. Lee, but it still allowed private citizens to guide the flow of their tax dollars. In essence, the tax credit was no different than public employees donating a portion of their wages to a religious organization, the court decided. The logic was that government funds were diverted to religious schools as the result of independent choice.

In both cases –  Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius — the role of independent choice is at issue. The logic employed in case of Arizona taxpayers should hold in these cases as well; the insurance benefits that Hobby Lobby and Conestoga contend violate religious freed are a payment for their employees’ labor just as are wages. The companies pay for the insurance policies not the contraception or abortion drugs. Neither the government or the employers control how workers make use of their insurance policies; whether the policies are used for contraception are a matter of independent choice.

Of course, both plaintiffs would contend that the independent choice should be theirs to make. Writing in an editorial for USA Today, Republican Representative James Lankford of Oklahoma — who represents the district where the owners of Hobby Lobby live — and Tony Perkinspresident of the Family Research Council, which filed an amicus brief in support of Hobby Lobby — argued that business should not be “forced to violate their conscience as a condition for placing the sign, ‘Open for Business,’ on their front doors.”

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