Kara Loewentheil
Yesterday
the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript
online, it became clear that even the experienced lawyers arguing
these cases – along with the Supreme Court Justices themselves – were
struggling to understand how to think about the relationship between religious
accommodations and third party rights. In this context, that means the impacts that
accommodations granted to religious employers would have on their female
employees who would otherwise have access to contraception without cost-sharing
under the Affordable Care Act’s contraceptive coverage requirement (and
indirectly on their partners and children).
This came as no surprise to me. In When Free Exercise Is A Burden:
Protecting “Third Parties” In Religious Accommodation Law,
a paper I authored that is shortly forthcoming in the Drake Law Review, I argue
that neither scholars nor courts have thus far provided a satisfying account of
how to balance free exercise rights against the impact of those rights on
“third parties.” In the paper I provide a thorough analysis of the existing
case law on this issue and propose both a novel framework for balancing such
rights as well as insight into how to better utilize the existing
constitutional and statutory doctrine toward this end.
In this short post, however, I simply want to draw attention
to one particularly overlooked element of the contraceptive coverage
requirement that can only be understood in relation to the “third parties” (female
employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive
coverage requirement, and analyzed everything – from the compelling interest
the government advanced to the effect of already-existing exemptions – in terms
of the tangible access or lack of access to contraception for the women
affected. But law has more than practical impacts – it has important expressive
impacts that are explicitly meant to, and do, shape social norms and
priorities. In my paper I argue that the contraceptive coverage requirement has
an enormously important expressive element – it signifies a social and
political commitment to women’s social and economic equality, and symbolizes an
acceptance of social and shared responsibility for gender equality. The
importance of contraception to women’s equality has been recognized by the
Supreme Court, and is featured prominently in the Government’s briefing on its
compelling interest in the law. That equality is impossible to achieve without access
to contraception. In that light, allowing religious accommodations without
ensuring seamless and no-cost contraceptive access for the employees of
objectors would be inflicting a serious expressive and dignitary harm.
Now compare that understanding to this exchange on pages
37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:
Now, each of those has a burden on third parties, but I would
respectfully suggest they’re different.
In the case of the employee who's been subject to racial discrimination,
even if they can get another job, that racial discrimination is a unique injury
to them that you can’t remedy unless you tell the employer, don’t discriminate
on the basis of race. . . . Here . . . all we’re really
talking about is who's going to pay for a subsidy that the government prefers. This
is not about access to the contraception.
It's about who’s going to pay for the government's preferred subsidy.
Clement’s
description of what’s at stake is as minimal as can be: it’s just who is going
to pay for contraception. It’s just a matter of money, with no expressive or
dignitary implications. What is fascinating about this set-up is that Clement
specifically contrasts this case to a race discrimination case, in which he happily admits that an employee
discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What
kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury”
that exists “even if they can get another job.” Contraception, on the other
hand, is positioned as simply a consumer good in the market, with absolutely no
greater purpose or significance. (Which is ironic, of course, since part of his
argument is that his clients view it as a sin.)
This focus on expressive norms and purposes is not just
theory-talk. It has direct implications for the way we understand the details
of the doctrinal standards as well. In the second half of the argument the
conservative justices hammered General Verrilli, arguing for the Government, on
how the Government’s interest in the contraception coverage requirement could
be compelling when there were allegedly various other exemptions in the law,
including for companies with fewer than 50 employees, religious organizations,
and grandfathered plans. Verrilli did his best to defend the exemptions, noting
that (1) companies with fewer than 50 employees are exempted from providing all
health insurance but must cover contraception if they choose to offer health
insurance, (2) religious organizations are exempted if they are houses of
worship but are only offered an accommodation that ensures access if they are
religiously-affiliated nonprofits, and (3) that the grandfathered plans will
decrease over the next several years until very few, if any, remain.
The conservative justices were particularly obsessed with
the grandfathered plans, and Verrilli had a bit of a difficult time explaining
why the practical impact of leaving millions of women without contraceptive
access during the intervening years did not undermine the Government’s
compelling interest. Embracing the expressive import of the contraception
coverage requirement, however, would have cast the exemptions in an entirely
different light. The expressive message of exempting small businesses from
health care coverage requirements generally is far different than if
contraceptive coverage was singled out from those policies. Similarly, the
exception for grandfathered plans reads, expressively-speaking, as an
administrative transition matter affecting all preventative health care
coverage, along with other of the law’s requirements, not as a judgment about
the importance of contraception. The religiously-affiliated organizations,
meanwhile, are subject to an accommodation that ensures seamless coverage for
women in their employ; it is true that the lack of an adequate enforcement
mechanism sends a troubling expressive message about the importance of this
right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to
undermine it.
In other words, understanding the expressive impact of the
law reframes the question of the baseline, helping us understand the compelling
interest and narrow tailoring tests in a deeper, more coherent way. Such a
perspective also has implications for the First Amendment analysis when it
comes to whether a law is neutral or generally applicable, but like the Court I
leave those questions for another day.
Kara Loewentheil is a Postdoctoral
Associate-in-Law and Fellow in the Program for the Study of Reproductive
Justice at the Information Society Project at Yale Law School. In May she will
begin as a Research Fellow and Director of the Public Rights / Private
Conscience Project in the Center for Gender & Sexuality Law at Columbia Law
School. Kara can be reached at kara.loewentheil at yale.edu.