Legal Protections for Religion in the Health Care Context

The Petrie-Flom Conference on Law, Religion and Medicine opened this morning with a plenary address by Doug Laycock, who suggested that the Supreme Court's decision in Hobby Lobby has been greatly exaggerated by both the winners and the losers.  He views the decision as a narrow one, given its basis on the fact that the government already had established a means to address providing contraception to employers of religious organizations and also suggested that the extension of RFRA to businesses did nothing new. (Among other things, he discussed the debates surrounding the failed Nadler amendment to RFFA, which suggested all sides thought businesses were covered.)

Following the plenary address, the first panel was titled Opening the Conversation: Testing the Scope of Legal Protections for Religions in the Health Care Context and featured papers by Leslie Griffin and Sam Levine.

Griffin believes that medicine and religion have different goals and that too much of medicine today is based on religion rather than health, identifying as problems in her view the growth of conscience clauses, what she calls an exemption regime, and the substantive content of much of health law.  Her claim is that the discussions we have would be different if our starting point was health and medicine rather than religion.  What exactly that means and how the discussions would be different was not apparent to me from her talk.

Levine's talk addressed the Supreme Court's "hands-off" approach to religion, suggesting that there are four related by conceptually distinct forms of inquiry.  First, the sincerity of religious claim.  Courts do have authority and obligation to evaluate whether an individual is sincerely asserting its religious claim.  While difficult at times to assess, one cannot clam a religious right absent sincerity of the religious claim.  Second, is the metaphysical truth of religious claim.  This is where courts have and should take a hands off approach. Third, as a corollary, courts have likewise refused to consider consistency or accuracy of claim.  Courts should not look at the views or co-religionists or even the consistency of the claimant's actions.  Fourth, review of the law;s effect on religions.  Courts do evaluate that and RFRA requires it.  What Levine thinks is less clear is whether the court has to defer to the religious adherent's claim of the extent to which the law burdens religion.