Last week, the D.C. Circuit heard oral argument in two challenges to the contraceptive coverage benefit brought by non-profit organizations with religious objections to contraceptives. And, on Tuesday, a Wyoming district court ruled that a group of non-profit organizations raising the same challenge can’t take the benefit away from their employees while the case moves forward. The argument at the D.C. Circuit and the decision by the Wyoming district court show how the courts are responding to employers’ attempts to let religion trump facts and legal responsibilities of the court.
In each of these cases, the non-profits state objections to contraceptives, sterilization, “abortion-inducing drugs” or “abortifacients,” and any related education and counseling. Wait—what? Despite assertions to the contrary, the ACA does not require any health plan to include coverage for abortion. The birth control benefit requires coverage of all FDA-approved contraceptives. By definition, contraceptives prevent pregnancy. That means that none of the FDA-approved contraceptives health plans must cover are abortifacients. In fact, physicians and other health care professionals submitted a brief to the Supreme Court that explains these facts [PDF]. But don’t let facts get in the way of a good story. The media, and even courts, are picking up this inaccurate conflation between contraceptives and abortion—adding to misinformation and deception that is already common when it comes to women’s reproductive health.
What is the court’s role here? Can courts reject a religious belief because it is not scientifically accurate? Generally, courts do not examine whether a person’s religious belief is true. If your religion tells you the sky is green, courts respect that. But, courts have no obligation to repeat those beliefs as if they are fact. To the contrary, the court has a responsibility to contribute to an accurate discussion of the issues before it. So, a court could acknowledge that, while it accepts the non-profit’s religious objections, emergency contraceptives and IUDs are contraceptives and are indeed some of the most commonly used and most effective forms of birth control. That’s not the court being hostile to religion; it’s letting facts become part of the story.
The non-profits not only want the courts to echo their replacements of science with religious belief, but to abandon their role in answering a critical legal question in these cases: whether a law imposes a “substantial burden” on religious exercise. The court absolutely has a responsibility to evaluate that core question. But, the non-profits argue, if they say the birth control requirement is a substantial burden on their religion, courts have to simply accept it as true.
Fortunately, the judges in the D.C. and Wyoming cases are not giving the non-profits a pass. In the hearing at the D.C. Circuit, the judges—in particular Judges Nina Pillard and Judith Rogers—asked questions of the lawyers about the court’s role in evaluating whether a “substantial burden” exists, and how that is distinct from taking the non-profits’ religious beliefs as sincere. They appeared skeptical about the non-profits’ argument that there is little to no room for the court to answer this question—that, essentially, the court must accept a burden as substantial if the religious objector claims it is. The Wyoming district court expressed the same skepticism in its decision. The Wyoming court emphasized that while it accepts the non-profits’ religious objection to contraceptives as sincere, the substantial burden question “is for this Court to determine, not for [the religious objector] to pronounce.” And the court correctly held that there was no substantial burden in this case.
These employers are not only arguing, as we’ve said before, that religion trumps the rights of their female employees—they’re also pushing for religion to trump facts and the role of the court. But religious freedom protects a person’s right to religious beliefs; it does not grant a right to impose those beliefs on others, to change medical facts, or prevent the court from considering central questions in these cases. It’s critical that we all see the difference.