CFC in the News 2016

Twisted Jurisprudence: “Religious Freedom” threatens birth control, PrEP and more

What if a court’s decision on female birth control led to an HIV-positive individual being denied access to lifesaving drugs? Or a gay man being denied PrEP? Or a rape victim prevented from accessing emergency contraception or PEP? Far from hypothetical, these are just some of the potential outcomes of a case being argued before the Supreme Court this week.

The case, Zubik v. Burwell, challenges a part of the federal health care law requiring that preventative care, including contraception, be covered by insurance. But the potential fallout from a ruling against the Obama administration has the Coalition for Liberty & Justice, an alliance of 60 civil rights and social justice advocates, sounding the alarm. They argue that the court’s ruling “could spell the end of religious liberty as we know it in the United States.”

“Religious liberty is a right too precious to allow it to be warped into the means to discriminate against others,” says Sara Hutchinson Ratcliffe, the domestic program director for Catholics for Choice, an organization which supports women’s access to reproductive health services. “We come together because we care about real religious freedom.”

Originally, houses of worship were exempted from having to provide insurance coverage for contraceptive care, as mandated by the Affordable Care Act. Then, at the behest of religious groups, including the U.S. Conference of Catholic Bishops, the Obama administration allowed religiously-affiliated organizations to “opt-out” of the mandate by filling out a form declaring their objection to providing the coverage. The coverage would then be provided directly to an individual through a third-party administrator.

The Supreme Court’s decision in the case ofBurwell v. Hobby Lobby in June 2014 later extended that same “opt-out” right to “closely held” for-profit corporations, based on an employer’s personal religious beliefs. But even that special accommodation wasn’t enough for opponents of the health care law, who filed nine separate challenges to the opt-out provision. According to them, even filling out the opt-out form constitutes a violation of their religious liberty.

Of the nine challenges, eight appeals courts have found in favor of the government, with only the 8th U.S. Circuit Court of Appeals, based in St. Louis, finding in favor of opponents of the mandate. Seven of the cases where the courts sided with the government were later consolidated and appealed to the Supreme Court.

Bishop David Zubik, the lead plaintiff in the consolidated cases, told the Pittsburgh Post-Gazette that the opt-out notice makes the religiously-affiliated employers “complicit in a grave moral wrong,” by allowing their employees to access coverage for birth control through an alternative route.

“We still have to sign off,” Zubik said. “In reality, we’re giving the green light that says we’re agreeing that you can provide these services, and that raises the issue that we’re being asked to do something that goes against our faith.”

But members of the Coalition for Liberty & Justice argue that the interpretation of religious freedom as advanced by Zubik and his allies gives priority to the employer’s personal beliefs and short-shrift to the personal beliefs and private medical decisions of their employees. And, they warn, it sets a dangerous precedent for how courts interpret the concept of religious freedom.

“The cases [before the court] are not just about the Affordable Care Act, nor about objections to providing birth control coverage,” Ratcliffe said in a Monday afternoon conference call. “These cases represent a profoundly harmful interpretation of religious freedom. The voices that we represent are deeply concerned about what could happen if the court rules in favor of the outrageous idea that employers should be allowed to trample on the consciences and personal lives of employees.”

Rea Carey, director of the National LGBTQ Task Force, another member of the coalition, says her organization is especially concerned about the ramifications of a ruling against the government in the Zubik case, because of the impact it would have on the LGBT community.

“Many of us can get pregnant, including cisgender women, transgender men, those who are intersex, gender-nonconforming people,” Carey noted in Monday’s conference call. “Many LGBTQ people can get pregnant, and need affordable access to birth control and other reproductive health options to make the best decisions for ourselves.”

But Carey says that the contraceptive mandate benefits even those in the community who can’t get pregnant, such as gay cisgender men. For example, under the Affordable Care Act, children can stay on their parents’ health insurance until age 26. Therefore, if the court were to decide in favor of the employers in Zubik, a gay male couple’s college-age daughter could be denied coverage for birth control if either man’s employer declared a religious objection.

“If employers can actually use religion to deny their workers birth control coverage in this case, it would set an incredibly dangerous precedent. The slippery-slope implications are concerning,” Carey continued. “Employers could also refuse to cover drugs like PrEP, because it’s been successfully used to reduce HIV transmission rates among gay and bisexual men, if that goes against the employer’s religious beliefs. Combined with other so-called ‘religious freedom’ laws that are creeping up across the country, it’s not hard to imagine a case where a doctor refuses to treat a transgender woman with breast cancer by making a religious exemption.”

Other advocates have also warned against the ramifications of using religious freedom as a justification for passing anti-lGBT statutes. In a separate conference call on Monday afternoon, The Leadership Conference Education Fund released an update to a previous report outlining the ways in which religious objections have been used to justify discrimination. The report notes that religious arguments have been used to argue against the abolition of slavery, racial integration, immigration, same-sex marriage, the Americans with Disabilities Act, and even the right to collectively bargain.

Sarah Warbelow, the legal director of the Human Rights Campaign, noted on the call that states that initially passed their own versions of Religious Freedom Restoration Acts, or RFRAs, based on the 1993 federal law of the same name, did so largely with the intention of protecting religious minorities. However, she said, the latest crop of RFRA-style bills — more than 100 of which have been introduced in various states this year — clearly target the LGBT community for discrimination under the guise of religious freedom.

“These bills are not motivated by a true desire to protect religious minorities, but instead to allow an individual to claim their religious beliefs as a reason to poke holes in legislation designed to protect us all,” Warbelow said.

The animus motivating many of these bills has become so apparent that some are calling for Congress to reexamine the overreach of RFRA. U.S. Rep. Bobby Scott (D-Va.), the ranking member of the House Committee on Education and the Workforce, has filed an amicus brief inZubik v. Burwell outlining his concerns about this overly broad interpretation of the RFRA statute. Scott worries that, under the interpretation being sought by the plaintiffs in Zubik, an individual’s claim of religious liberty could be used to flout existing laws, such as civil rights laws.

“These arguments are not new. But they are dangerous,” Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, says of the tactics being used by social conservatives. “There can be no religious exemption from basic human dignity. And to wrap this bigotry in a false flag of religious liberty is the true abomination.”

This article was originally published in Metro Weekly (DC).