Religious Liberty and Reproductive Rights: Understanding the Issues in Sebelius v. Hobby Lobby

This blog is part of a WRJ blog series commemorating Women's History Month. 

In less than a week, the Supreme Court will hear oral argument in Sebelius v. Hobby Lobby and Conestoga v. Sebelius. These cases have been getting a fair amount of coverage in the press and attention in the advocacy community over the past few weeks. If you are new to these cases, or if you’re excited (like me) to see what will happen before the nine justices on March 25^th, here’s a rundown of the basic arguments, the stakes, the position of the Reform Movement, and some suggestions for further reading in anticipation of oral argument.

Let’s go all the way back to the beginning of the story to understand the questions before the Court. In July 2011, an Institute of Medicine panel recommended eight preventative clinical services for women that should be offered without co-pays under the newly-passed Patient Protection and Affordable Care Act. The fifth recommendation was for insurance plans to make available “the full range of FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” In August 2011, Secretary of Health and Human Services Kathleen Sebelius followed the panel’s advice and released regulations that included birth control without co-pay. Reflecting and respecting the unique role and mission of religious institutions, the rule contained a religious exemption. Nonetheless, some religious leaders expressed concern that the exemption was too narrow (for example, one objection was that the exemption includes houses of worship but not religiously-affiliated universities or hospitals). At the same time, many women’s health groups argued that the exception drawn by the Administration was too broad and would deny women employed by those institutions access to birth control without co-pay. As a compromise, the Obama Administration announced in early 2012 that it would work with all the interested groups and revise the regulations, likely by having insurers pay for the contraception, rather than the religious entities. On behalf of the Reform Movement, Rabbi David Saperstein, Director of the Religious Action Center, submitted comments on an early (June 2012) iteration of a compromise. In a continued effort to strike the most respectful and fair balance, a new rule on the implementation of this mandate was written, which was followed by another comment period opened in early 2013, and Rabbi Saperstein again submitted comments. This extensive process concluded with the current rule, the “contraception mandate,” which the Reform Movement welcomed for its judicious concern for women’s health and equality and reproductive rights. The contraception mandate struck the following balance: (1) houses of worship that object to providing contraception under their health care plans are fully exempt; (2) religiously-affiliated organizations that object to providing contraception under their health care plans must self-certify that objection, and then a third-party insurer will contact employees about coverage for contraception separate from the employer; (3) all other employers that provide health care have to include contraception in the plan they offer. It is important to note that not all faith or employers object to all forms of birth control, for some, it’s just emergency contraception (the morning-after pill), or what the individuals or faiths consider to “abortifacients,” drugs that prevent implantation of an egg and thus are very problematic to them. There is a significant difference between contraception and abortion and medicine recognizes that–however, it is important to respect the beliefs of all faith traditions and allow organizations whose missions is to further some aspect of that faith to act according to their tenets. And we arrive at Hobby Lobby Stores, Inc, and Conestoga Wood Specialties:

Corporations are neither exempted nor accommodated by the contraception mandate. Thus, they must provide full contraceptive coverage. What the compromise did not predict was an objection to providing such coverage from owners of corporations. The owners of both Hobby Lobby, an arts and crafts supplies chain, and Conestoga Wood, a wood products supplier, object to certain kinds of contraception for religious reasons, and have sued the government under the First Amendment and the Religious Freedom Restoration Act of 1993, claiming that the contraception mandate places a substantial burden on their religious free exercise. The Religious Freedom Restoration Act (RFRA) is a law that the Reform Movement fought very hard to pass in the 1990s following an unfortunate decision in Employment Division v. Smith, which overturned decades of precedence that protected religiously-observant individuals from government laws that would infringe on their practice. RFRA instates a three-part strict scrutiny test that is intended to be used in court to determine whether or not a law:

1. Substantially burdens a person’s free exercise of religious
2. Furthers a compelling government interest
3. Is applied in the least restrictive means

The owners of Hobby Lobby and Conestoga Wood claim that the contraception mandate would not pass the RFRA test and thus an exemption ought to be carved out for them. An important nuance here is that Hobby Lobby and Conestoga Wood are bringing the case as corporations–a decision in either case will have to determine whether a corporation may have the same religious exercise rights and protections as an individual. Here’s where reproductive rights comes in. The Affordable Care Act sought to correct an unfair financial burden on women in paying for their health care out of pocket. As Reform Jews, and specifically as Reform Jewish women, we are deeply committed to women’s equality and women’s health. A woman’s ability to make the health care choices that are right for her is crucial to her self-determination. Women ought to be recognized as their own moral decision-makers, able to make their own decisions about their bodies and lives, in discussion with the family members, doctors, and clergy they choose to include. The Women of Reform Judaism, Union for Reform Judaism, and the Central Conference of American Rabbis joined an amicus brief in this case, arguing in favor of the mandate from the perspective of a religious institution. You can read the amicus brief in full here. The brief outlines our view on this case and the questions presented. Women of Reform Judaism is profoundly committed to the issues these cases touch on. A great way to be an advocate right now is to get reading! Knowing the issues, the different arguments, and how to talk about the cases is an important component of social action, on this particular topic, or any other!

There are many other issues and questions tangled up in these cases. For an overview, check out the blogs I’ve written over the past few months to get up to speed. Mar. 5, 2014: Counting Down to Hobby Lobby Feb. 21, 2014: Update: The Contraception Mandate at the Supreme Court Jan. 24, 2014: What’s Next for Reproductive Rights at the Supreme Court Jan. 6, 2014: The High Court and the Contraception Mandate Dec. 27, 2013: Reproductive Rights in 2013, What to Look Out for in 2014 Dec. 24, 2013: The New Year Brings Expiration of the Safe Harbor Nov. 27, 2013: The Supreme Court Will Hear Landmark Case on Contraception Nov. 22, 2013: The Contraception Cases at the Supreme Court Oct. 21, 2013: The Current Condition of Contraception Access: Five Articles to Read Over the past few months, much of the discussion over these cases has been happening in the legal sphere. The myriad of perspectives and views is fascinating. Here are articles (and collections thereof) to check out if you want to do some more reading! Jewish Women and Reform Say Contraception is 'Moral Good,' by JTA, Jewish Daily Forward --  Featuring prominent mention of WRJ and Executive Director Rabbi Marla J. Feldman's signature to a faith leaders statement on religious liberty and birth control. In Defense of Religious Liberty, by Emily Bazelon, Slate Yes, Corporations are People, by Adam Winkler, Slate SCOTUSblog’s contraception mandate symposium, a series of short essays by lawyers and scholars on the various topics the cases cover. There are many articles, but definitely worth reading, at least a few! On Both Sides of Hobby Lobby, by Dmitry Shapiro, Washington Jewish Week Putting facts front and center for the contraceptive coverage cases before the Supreme Court, by Adam Sonfield, Alliance for Justice It’s About Women’s Health and Rights, by Donna Barry, Center for American Progress The National Women’s Law Center put together a chart of amici briefs submitted to the Court in support of the mandate. The Becket Fund for Religious Liberty put together a similar chart, but for amici submitted on the other side, available here.

Check back here for updates on this case as it moves through oral argument and the decision in the late spring.