Republican politicians have seized on the Zubik v. Burwell case, which was argued today at the Supreme Court, as further “proof” that the Obama administration is pursuing a war on religious liberty.
This argument is rooted in three myths that the Right has been promoting about contraception, the Affordable Care Act and religious freedom:
Myth 1: Obamacare Forces Objectors To Pay For Contraceptives
The Zubik case deals with the Affordable Care Action’s contraception coverage requirement. If a religious nonprofit employer with religious objections wants an exemption from the requirement, they can fill out a form to notify the government, which will then shift the burden of contraceptive coverage to the government and the insurance company.
The plaintiffs in the Zubik case, which is a consolidation of several cases, are challenging this accommodation, arguing that the exemption process itself amounts to a substantial burden on their religious conscience.
“Unlike in Hobby Lobby v. Burwell, the 2014 case that asked whether secular, for-profit businesses should also have the right to pursue a religious exemption from the birth control benefit, the Roberts Court in Zubik v. Burwell will try to answer the question of whether completing the paperwork required to obtain that religious exemption is itself a substantial burden on religious liberty,” Jessica Mason Pieklo of Rewire writes. “If the plaintiffs win in Zubik, it could not only spell the end of the ACA’s birth control benefit; it could further open the door to launching wide-scale religiously based objections to civil rights protections.”
Indeed, some observers fear that employers could use a potential Zubik ruling to undermine health insurance coverage of vaccinations or HIV treatments if they claim such procedures violate their religious beliefs.
Myth 2: This Is About Abortifacients
Obamacare critics have frequently alleged that the health care law forces religious groups to subsidize “abortifacients.”
But while some conservatives like to claim that certain birth control drugs are abortifacients, that doesn’t make it so. As Jamie Manson wrote in the National Catholic Reporter:
The HHS mandate allows women free access to all FDA-approved forms of contraception. This includes the IUDs (intrauterine devices), the drug Plan B (levonorgestrel) and a new drug called Ella (ulipristal acetate), which came on the market in 2010. Church officials and others have argued that because these three contraceptives are abortifacients, the government is forcing them to participate in the distribution of devices and drugs that cause abortion.
The reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives. Since Ella is new to the market, it has not been studied as extensively. But as of now, there is no scientific proof that Ella acts as an abortifacient, either.
There is only one drug approved to induce abortion. It is called RU-486 (mifepristone) and is not on the FDA’s list of approved contraception. It is available only by prescription and no employer is forced to pay for it as part of an employee health plan.
A similar analysis by the New York Times also showed that the contraceptives that some conservatives have decried as “abortifacients” do not in fact “meet abortion opponents’ definition of abortion-inducing drugs.”
The Zubik plaintiffs, it seems, are not only trying to challenge the established principles of religious liberty and the legal rights of their women employees, but they are also challenging mainstream science.
Myth 3: Religious Liberty Is Under Attack
Some Republican politicians are peddling the misconception that the Obama administration is trying to force nuns to pay for contraceptives. In reality, however, the Affordable Care Act offers religious objectors a way to avoid paying for services they find objectionable.
In this case, the employers are seeking to take away their employees’ access to birth control coverage through secular insurance plans.
The Zubik plaintiffs are taking issue with the accommodation found in the contraception mandate, which doesn’t apply at all to houses of worship and their auxiliary institutions, and which creates an exemption process for nonprofit religious employers that don’t wish to cover contraceptives.
Holly Hollman of the Baptist Joint Committee for Religious Liberty points out that the plaintiffs may actually do great damage to laws that have created exemptions for religious institutions: “They argue the mandate’s exemption system is too narrow because these employers are not treated exactly like churches. At the same time, they argue it is too broad because if the government does not cover church employees it must not have a compelling interest in coverage. Government efforts to craft religious exemptions to protect religious liberty, while also protecting other important governmental interests, should be encouraged, not discouraged with such ‘all or nothing’ exemption claims.”
University of Virginia law professor Douglas Laycock similarly argues that a successful challenge “would do terrible damage to the larger cause of religious liberty” by targeting religious exemptions crafted into laws.
This is yet the latest example of the Right’s organized effort to redefine religious liberty.