Issues concerning the principle of religious liberty and its role in law and civil society have become a fixture in the headlines. One prominent example is a court case before the Supreme Court this year, Sebelius v. Hobby Lobby Stores.
Hobby Lobby seeks a religious exemption from the contraception mandate in the Affordable Care Act, as the Green family, who owns the company, sees the morning-after type contraceptives that they would be compelled to provide under the law — such as Plan B — as potential abortifacients.
This used to be a fairly commonly held view. The National Institute of Health’s Medline Plus used to advise users of synthetic progesterone-based contraceptives that use of Plan B could prevent implantation, the process whereby an embryo adheres to the wall of the uterus.
However, this warning has since been removed, as scientific evidence corroborating this view has been scant. A group of pro-life obstetricians published a paper in which they too affirmed the emerging scientific consensus that Plan B and other synthetic progesterone contraceptives do not inhibit implantation, and therefore do not act as abortifacients.
The Green family is entitled to have qualms about the possibility of being accessory to an abortion. Once they ask for a religious exemption, they enter into First Amendment grounds, which has long been a complex area of our country’s law.
To best understand the role of religious freedom in our society, it’s essential to have a firm understanding of the First Amendment and the separation of church and state in the United States.
The First Amendment begins as follows; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
A simple reading of the text doesn’t really help us decide this case. Does exempting religious persons or institutions from a particular law constitute an establishment of religion or does not doing so prevent the free exercise of religion?
Thomas Jefferson, in his letter to a Baptist group in Danbury, Conn., gives us an explanation of the founder’s views on the relationship between religion and the state. “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law establishment of religion, or prohibiting the free exercise thereof. This building a wall of separation between Church and State.””
To better understand Jefferson’s views, one must take into account the context in which the letter was written.
At the time, some state governments had established churches, as the Bill of Rights only applied to the national government until the 20th century. Jefferson opposed established churches because he saw them as inhibiting the free exercise of those who did not follow those established churches. This was the grievance of the Danbury Baptists; they saw the state-enforced Congregationalist hegemony as impeding their religious practice.
Therefore, Jefferson saw the establishment clause of the First Amendment as integral to the nation because it protected the religious practice of its citizens from the actions of their government.
The Green family is seeking an exemption from the law under both the Religious Freedom Restoration Act (RFRA), and the more general right to free exercise under the First Amendment. The 1993 statute declares that the government can only compel a person’s exercise of religion only if it demonstrates that the burden is either in the furtherance of a compelling government interest.
If one accepts the ruling in Citizens United v. FEC, which established that corporations, as they are associations of citizens, are entitled to the First Amendment protection of speech, it follows that the high standard of review that is granted to citizens under the RFRA applies to business as well. This is a contentious legal question, which will be decided by the court this summer.
If the court decides to extend the protections the RFRA to businesses, then I think the government ought to allow Hobby Lobby to not provide the contraceptives the Greens object to. I do not see the provision of a select number of contraceptives as a compelling interest of the state. Especially in this case, where they are willing to provide a number of alternatives and given the fact that progestogen-based contraceptives — synthetic hormones that are taken after intercourse which prevents or delays ovulation, which in turn prevents pregnancy — are readily available over the counter at pharmacies across the country.
One of the defining features of this country is freedom of religion. As a pluralistic society, we have long been in favor of a broad understanding of the exercise of religion, which would be greatly narrowed by a ruling maintaining the Affordable Care Act’s contraceptive mandate.
Manuel Fernandez is a contributing columnist. You can contact him at email@example.com