An Important Clarification

In a recent column in the Pittsburgh Post-Dispatch, Duquesne Law professor Bruce Ledewitz makes an important point about the Affordable Care Act and contraceptive coverage –a point that has gotten lost in all the language of victimization and self-righteousness: religious institutions are not required to provide contraception and other objected-to medical coverage under the Affordable Care Act. Instead, the religious institution is required only to forward a list of its employees to its insurance carrier, which must then provide the coverage itself if the employees want it, without cost to the employer.

That, boys and girls, is what has given rise to the assertion that the employers’ religious liberty is being violated–or “burdened” excessively, to use the terminology of the Religious Freedom Restoration Act (RFRA). RFRA was passed in response to a series of Supreme Court decisions rejecting claims that obedience to laws of general application–laws against drug use, zoning and historic preservation laws and the like– shouldn’t apply in situations where they prevented people from acting on their religious beliefs. (For example, the Court held that Native Americans could believe in smoking peyote as part of a religious ritual, but they couldn’t act on that belief.)

As Ledewitz notes, the claim that having to send a list to your insurance carrier “burdens” your religious exercise strains credulity.

To see how extreme this position is, imagine that the Obama administration had offered yet another compromise: that the religious institution need only offer a list of its employees to the government and the government would provide health insurance ecoverage. If religious employers had really wanted to compromise, they could have lobbied for this option. But, undoubtedly, they would have objected even to this requirement…..

Even closely held for-profit corporations have claimed exemption under RFRA, as if these corporations had religious consciences. The owners of these corporations assert that their corporations are alter egos of their human shareholders, when, in fact, the whole point of the corporate form is to shield the shareholders from the debts of the businesses. When it comes to money, the corporations and the owners are quite separate.

RFRA was never intended to operate in this maximalist fashion. Under the free-exercise-religion claims that RFRA replaced, religious plaintiffs usually lost their cases against the obligations of generally applicable laws. And even today most religious believers find ways to compromise with government programs and requirements with which they disagree. Catholic judges, for example, for years have granted divorces, even to Catholic couples. These judges have not asked for exemptions in these cases.

But instead of compromise and goodwill, the Affordable Care Act has provoked overheated rhetoric and over-the-top objections on the part of religious institutions and individuals, many of whom opposed the act from the beginning and are now continuing their political campaign in the courts.