The debate over the contraception mandate has raged on for more than a year with virtually no input from the women who stand to gain the most if the U.S. Supreme Court rejects the claims of organizations seeking exemptions from the requirement
on the basis that it violates their “religious liberty.” The media is saturated with claims about the reputed harms to those challenging the mandate, whether those organizations are for-profit, secular companies like Hobby Lobby and Conestoga Wood Specialties, or nonprofit religiously affiliated organizations like the University of Notre Dame and Little Sisters of the Poor. “We are being penalized for practicing our faith!” is the clarion cry of these organizations.
Even if it is true that the Religious Freedom Restoration Act (RFRA) permits the religious exemptions sought by these organizations—and I have argued extensively that it does not—what of the harm imposed on those whom the mandate is intended to benefit? Where are the women in this debate? What legal argument centers their concerns?
In recent weeks, several legal commentators and scholars have declared that the Establishment Clause is the answer.
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In an amicus brief recently filed with the U.S. Supreme Court in the Hobby Lobby/Conestoga Wood lawsuit, a group of church and state legal scholars, including professors Frederick Gedicks and Elisabeth Sepper, argue that the Establishment Clause prohibits the for-profit companies Hobby Lobby and Conestoga Wood from imposing the costs of their religious liberty on to women. (You can hear
an interview with Sepper on Rewire’s new legal podcast.) And, earlier this month, the New York Times editorial board argued that in considering Hobby Lobby and Conestoga Wood’s case, the U.S. Supreme Court “should at least recognize that the establishment clause takes precedent over the restoration act.” It seems that the Establishment Clause argument, while late out of the gate, is becoming the little argument that could.
The church and state legal scholars’ effort in raising the issue before the Supreme Court notwithstanding, no affected women have intervened in any of the cases involving for-profit secular companies to argue on behalf of themselves and others who would be affected by the outcome of the case. (When a party “intervenes,”she inserts herself into a lawsuit between others in order to protect her own interests.) Since no Hobby Lobby or Conestoga Wood employee is asserting his or her rights in the lawsuit, the Supreme Court is not bound to even consider the claim.
On the nonprofit organization front, however, things are a little different. The University of Notre Dame is being forced to answer to three women who have recently intervened in the university’s lawsuit to assert their rights as students to contraceptive access in student health plans. The three students are arguing that permitting the University of Notre Dame to opt out of the mandate imposes a significant burden on them, and therefore violates the Establishment Clause.
These students aren’t asking for much. They’re not asking that the University of Notre Dame provide contraceptive access or even pay for it. Rather, they are simply asking that the university do what it has always done and what it says it would have done anyway: inform its health plan administrator that it will not be offering contraception. After the university does so, it has no further obligation under the Affordable Care Act. At that point, third parties—Notre Dame’s health plan administrator and the government—will step in to provide the contraceptive access to which Notre Dame objects, at no cost to Notre Dame.
But that’s not enough for the university. Notre Dame still protests, claiming that the mere act of stating its refusal to provide contraceptive access will lead to third parties providing that coverage instead, and Notre Dame objects to being involved in any scheme
that leads to women taking birth control, even when that involvement is nonexistent.
The University of Notre Dame wants to have its cake and eat it too: It doesn’t want to provide contraception, but it doesn’t want anybody else to provide it either.
Privileging the University’s religious interest in an indirect association with contraceptive coverage over the interest of literally thousands of women in actually receiving that benefit—and giving the University veto power over the flow of such benefits from independent third parties to affected women—would, as applied in this case, place RFRA at odds with the Establishment Clause.
Indeed it would. But the same principle applies to the lawsuits brought by for-profit companies. The question becomes, then: Why has this argument gone woefully ignored in the cases brought by companies like Hobby Lobby and Conestoga Wood?
Greg Lipper, senior litigation counsel at Americans United for Separation of Church and State (AU) and an attorney for the student-intervenors in the Notre Dame lawsuit, has a theory. “This isn’t a matter of people being asleep and not realizing that it would be helpful to have interests of affected women heard,” Lipper says in an interview for Rewire’s RJ Court Watch podcast. “It’s just difficult to find people willing to come forward.”
Considering that AU is representing the three student-intervenors anonymously, it is easy to imagine that employees of companies like Hobby Lobby and Conestoga Wood would be hesitant about intervening in these lawsuits, especially in this economy, out of fear of retaliation. But then why isn’t the government making the Establishment Clause argument?
According to Lipper, it’s a matter of litigation tactics. “The government has an obligation to defend federal statutes and they don’t want to be making an argument that RFRA has Establishment Clause problems because that could come back to bite them in future cases in which they want to defend the application of the statute,” he said.
While that makes sense from a legal standpoint, it is of little comfort to the thousands of women who will be harmed if courts fail to sufficiently consider the consequences to women of religious liberty objections.
Fortunately, as a result of the recent surge in media interest in the Establishment Clause, it is conceivable that the Supreme Court will address this argument in the upcoming oral arguments in the Hobby Lobby/Conestoga Wood case, even though no party to the case has made the argument, only the church and state scholar amici have. And should the University of Notre Dame case make it to the Supreme Court, the Establishment Clause argument will be front and center, thanks to the three women who have stood up to Notre Dame.