Analysis Law and Policy

Why the Right Will Reject the Administration’s Latest Birth Control ‘Fix’

Jessica Mason Pieklo

The lawsuits challenging the contraception benefit in the Affordable Care Act are less about birth control and more about a larger strategy to use the First Amendment to challenge government regulatory power.

Read more of our coverage on the Wheaton College case here.

In predictable fashion, almost as soon as the Obama administration released its latest tweak to the birth control benefit of the Affordable Care Act, the religious right lined up to denounce it, putting to rest any ideas that the litigation over the benefit would come to an end anytime soon. The change, released by the administration last week, largely puts into effect the Supreme Court order in the Wheaton College case. That unsigned order, which was released at the close of the Court’s formal term, held that the evangelical college could notify the Department of Health and Human Services directly of its religious objection to providing health insurance coverage for contraception because the current accommodation process of completing this form probably unduly burdened its religious rights.

Still, it was not enough to meet the demands from the religious right and those bringing the legal challenges to the benefit. The U.S. Conference of Catholic Bishops said in a statement that it was “disappointed” that the regulations didn’t go beyond the Supreme Court’s instructions and redefine “religious employer” to include any employer who was seeking to block employee access to contraception coverage. Meanwhile, the Becket Fund for Religious Liberty, the conservative legal advocacy organization bringing many of the lawsuits challenging the benefit, released a listicle of talking points, pouncing on the fact that this is the “eighth time” the administration has “retreated” on the benefit while crowing that the government finally recognized that “families don’t lose their religious freedoms.” Naturally the organization refused to say whether these latest concessions will be acceptable enough to drop the legal challenges, which is almost the same thing as admitting it plans to continue the fight.

“This had nothing to do with a sincere religious objection,” Greg Lipper, senior litigation counsel at Americans United for the Separation of Church and State, a non-profit legal advocacy organization, told Rewire. “These groups obviously will not rest until their employees or students have no way to get contraception coverage.”

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Lipper’s organization represents students at the University of Notre Dame who have intervened in that university’s challenge to the accommodation and litigates First Amendment cases generally.

“It’s making a mockery of religious liberty,” Lipper said. “There are situations where accommodations are appropriate and important. But unfortunately the face of religious accommodations has now become ‘I object to filling out a form saying I want an accommodation.’”

“Religious accommodations are becoming a punchline,” he continued. “It’s not only harmful in this particular instance for the women who need access to affordable contraception; in the long run it’s doing a grave disservice to the broader goal of religious liberty because the face of religious liberty is now this nihilistic opposition to paperwork.”

But as Lipper explained to Rewire, one reason these latest concessions won’t be enough for the religious right is that the legal challenges to both the contraception benefit and its accommodation fit into larger efforts by conservatives to use the First Amendment and free speech and religious exercise principles to advance a broader deregulatory agenda. “We’re going down a path where an individual religious objection to a particular law is being used as a trump card,” said Lipper. “We’re seeing First Amendment principles being used to try and make public sector employee unions illegal,” he added, referring to Harris v. Quinn, the Roberts Court decision that nearly enshrined “right to work” laws as constitutional expressions of the First Amendment. “It’s amazing.”

Nowhere is the impact of this shift in law more apparent than in those cases that deal with reproductive rights and autonomy, a point demonstrated by Dahlia Lithwick and Sonja West here when they suggested the Ferguson protestors re-brand themselves as “sidewalk counselors” in response to the blatantly unconstitutional protest restrictions state authorities enacted in the wake of the Michael Brown murder. While Lithwick’s piece doesn’t deal expressly with religious exercise claims, it hits on the central issue Lipper explained in our interview: The bulk of the federal court’s shift in its approach to religious liberties has been for the benefit of Christian conservatives, and to accomplish this shift the courts have accepted without question claims that it would have previously turned away. “With the Court’s decisions in Hobby Lobby and to a lesser degree in Wheaton College, the Court said pretty much anything that can be asserted as a substantial burden will be considered as such, no matter how objectively unreasonable,” said Lipper. “It’s as if the Supreme Court is signaling almost a blind reverence to religious burden claims.”

According to Lipper, the fallout from the Court building case law around insulating conservative Christians from government regulation will likely include more government paralysis. “We have the ‘least restrictive means’ analysis being applied in a manner that if you ever made another exception for anyone else, that’s proof positive of a less-restrictive means,” Lipper said, referring to the law’s requirement that the government show its particular action was the least restrictive means of accomplishing its compelling interest, in this case facilitating access to contraceptive coverage. “And that less restrictive means can include the government creating a new program and paying for it. The combination of those things is going to make it very hard for the government to do anything, which may be the end goal of some of these cases.”

If a large portion of the shift in the law toward embracing individual religious rights as a trump card to governmental regulation has been facilitated through conservative Christian legal challenges like those to the contraception benefit, we’ll have a better idea after the Supreme Court’s next term whether this is a coincidence or not. In addition to likely hearing more legal arguments against the contraception benefit, the Supreme Court will hear arguments in a case brought by a fundamentalist Muslim prisoner who is challenging an Arkansas corrections policy that prevents him from growing a beard longer than a quarter-inch on the grounds the policy violates his religious liberties. How the conservative majority rules will say a lot about whether this country is in the midst of a profound shift in its understanding of religious exercise rights broadly or, as Lipper, Imani Gandy, and I, among others, have suggested, these cases more accurately reflect an attempt by Christian conservatives to retain political power in the face of ever-shrinking electoral power.

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