Republicans and religious organizations fighting President Obama’s new birth-control-coverage rule have taken the battle to the courts.
Eight lawsuits have been filed in federal district courts across the country challenging the constitutionality of the rule requiring most* employers, even church-affiliated organizations for whom there are deeply held religious objections to covering birth control in workers’ health plans with no out-of-pocket charges. Churches are not included in this mandate.
The matter will ultimately be decided by the nation’s highest court. Sen. Roy Blunt (R-Mo.) pointed in the direction of the Supreme Court as he declared: “This issue is not over. . . . These faith-based institutions will not be willing to change their character. . . . And so this is a debate that might be settled at that building across the street.”
In the meantime, though, the plaintiffs will argue, among other claims, that the rule, which takes effect Aug. 1, interferes with their First Amendment right to free exercise of religion by effectively compelling them to provide a form of coverage that conflicts with their beliefs.To win that argument, they will need to clear a major legal hurdle: A landmark 1990 decision in a case called Employment Division v. Smith, in which the Supreme Court found that if a law is “neutral and generally applicable” — meaning that it is not specifically targeted against any religious group — individuals must comply with it even when doing so imposes a burden on their free exercise of religion.Writing for the majority in that case, Justice Antonin Scalia — a conservative justice known for his strong identification with the Catholic Church — found that to allow otherwise “would be courting anarchy” by making “the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself.”
The plaintiffs in the suits now pending over the federal rule contend it is different because it offers exemptions to all sorts of other groups — including small employers and “grandfathered” health plans that were in existence before the health-care law was adopted. “This indicates that the law is not generally applicable,” said Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, a public-interest law firm that is representing employers in four of the legal challenges.
In addition to their constitutional challenges, the plaintiffs will try to convince judges that the federal rule violates a 1993 law adopted by Congress in response to the Supreme Court’s Smith decision. The Religious Freedom Restoration Act signed into law by President Bill Clinton, essentially replaces the “neutral and generally applicable” standard set by Smith with one that is far more stringent. It states that even a generally applicable federal law cannot “substantially burden” a person’s exercise of religion unless the law furthers a “compelling government interest” and does so by the order viagra “least restrictive means.”