A Debate on the Contraceptives Coverage Mandate Litigation

The plenary session on this second day of the Petrie-Flom Conference on Law, Religions and Medicine was a debate between Adele Keim (Becket Fund for Religious Liberty) and Gregory Lipper (Americans United for Separation of Church and State).

Keim made three points in her remarks.  First, that religious diversity is good for health care and conscience protection allows that diversity to flourish.  Religiously motivated health care providers continue to be part of care landscape in this country - something that is not inevitable - because they have been permitted to operate as communities of faith (e.g. being allowed to hire employees of their faith) and because historically we have been willing to work hard to avoid widespread and foreseeable conflicts of conscience, have been especially sensitive  to conscientious objections to the taking of human life. This has allowed religious people to continue to provide important services.   

Second, the HHS regulations assault both of those background principles, failing to respect the principle that religious nonprofits have a deep interest in preserving the character of their religious communities and coerces them to provide drug they believe involves the taking of human life.  (She then spent time talking about the history of the mandate and the Hobby Lobby litigation.)

Third, the third party  harm arguments used to justify the mandate are one-sided and it is reasonable to expect that one consequence of forcing compliance is that some religious organizations will close entirely.  It is important when considering harms to acknowledge the lasting harm the mandate will do if entities like Little Sisters  leave health care entirely.

Lipper also made three points. First, religious opposition to the contraception mandate provisions are as much about ideological opposition to the Affordable Care Act itself as about religious objection.  He suggests the sincerity doctrine has been underutilized in these cases and that the fact that many of the plaintiffs in the for-profit cases had been providing contracpetion coverage prior to the mandate suggest that this is about the broader political objection to health care reform.  

Second, he argued that even if the objections are sincere, Hobby Lobby represents a dramatic expansion of the substantial burden doctrine and a cramped understanding of least restrictive means. On the former, if substantial burden is measured by the size of the fine there is no limiting principle. On the latter, if the government's ability to provide the benefit itself means there is a least restrictive means, virually anything can be provided by the government.  

Third religious accommodation are now being wielded, not as attempt to compromise, but as a trump in way that accept no compromise.  And that, he suggests will lead to evaporation of  support for religious liberty, a backlash that is already being seen.

In an earlier panel this morning, Holly Lynch did an effective job defending the majority opinion in Hobby Lobby.  But my biggest agreement with her is her final conclusion that Hobby Lobby lays bare the real problem of the ACA: a failure to move away from an employer based system of providing health care benefits.