Weaknesses in the Supreme Court HHS mandate decision

Pro-life advocates and many conservative Christians are hailing today’s SCOTUS decision in the Hobby Lobby case as a great win for the pro-life cause. But it’s a very qualified limited victory, for several reasons.

1. The scope of the decision is very narrow. It only applies to 4 methods of FDA approved contraception which are said to be abortifacient. It does not seem to apply to other forms of contraception. The Catholic objection to all contraception, even when it is not abortifacient, does not seem, under this decision, to be sufficient to prevail over the HHS mandate.

2. The decision was not based on First Amendment right to freedom of religion, but only on an act of Congress, the Religious Freedom Restoration Act (RFRA).

3. The RFRA was passed in the early 1990s. It probably would not pass today, and if Democrats obtain control of both houses in this year’s election, they might try to overturn the law, or — more easily — carve out an exemption for the HHS Mandate.

4. It doesn’t help religious non-profits who don’t want to go through the certification process to apply for an exemption from the Mandate.

5. The decision specifically allows the government to force individuals or organizations to comply with a law that violates their religious belief if there is some type of discrimination at issue.

“This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”

This opens the door to forcing companies to provide goods and services to same-sex weddings.

6. The decision specifically allows the government to force individuals or organizations to comply with a law that violates their religious belief if there is a compelling government interest.

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.

If the HHS mandate constitutes a compelling gov’t interest, that’s a very low bar. The range of behaviors that the gov’t could force on believers becomes very broad.

6. The ability to withstand the HHS Mandate will fall apart if a medical and scientific consensus were reached that these methods of contraception are not abortifacient.

From a Catholic point of view, the wording of the decision is troubling. It does not protect our right to freedom of religion. It’s basis in an act of Congress from the 1990’s, which is weak and subject to change. And the HHS could easily claim that this decision permits them to force organizations, perhaps even non-profit religious organizations, to provide non-abortifacient contraceptives.

UPDATE: Supreme Court orders, based on the Hobby Lobby decision, seem to have expanded the scope of the decision to cover religious objection to all contraceptives, not only abortifacients, as well as sterilization. LA Times article

Ronald L. Conte Jr.
Roman Catholic theologian and
translator of the Catholic Public Domain Version of the Bible.

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