What’s Really at Stake in Zubik: “They Want to Prevent Contraception”

March 24, 2016

It’s 2016. The year which holds the 47th anniversaries not only of my birth, but also of humanity’s first tentative steps onto soil not of this planet with the first lunar landing. And yesterday, on a beautiful spring day in DC, I spent the morning on the steps of the Supreme Court protesting in favor of access to birth control as the justices heard oral arguments in the case of Zubik v. Burwell.

Over those 47 years, the Supreme Court has made momentous decisions. It has defended high school students’ rights to protest war (Tinker v. Des Moines, 1969); protected a woman’s right to choose an abortion (Roe v. Wade, 1973); defended the right to burn the flag in protest ( Texas v. Johnson, 1989), upheld the rights of non-religious students against school sponsored religious activity (Santa Fe Independent Schools District v. Doe, 2000); and extended the right to marry, with all its accompanying state benefits, to gays and lesbians ( Obergefell v. Hodges, 2015).

Of course, in these 47 years, the Court has also made many decisions where I believe they got it wrong – where they ruled against progress, and a more open, fair, and just society. But something said by the Rev. Barry Lynn, Executive Director of Americans United for the Separation of Church and State, yesterday on the steps of the Court rang true with me. Even in cases where I feel the Court has made mistakes, such as ruling that the history of legislative prayer was sufficient to allow explicitly Christian invocations before the meeting of a municipal government (Town of Greece v. Galloway, 2013), or finding that providing higher funding to schools in richer areas did not violate the rights of low income students  (San Antonio Independent Schools District v. Rodriguez, 1973), I’ve at least been able to see the other side’s argument, and understood the point they are making.

But not this time. Not in Zubik v. Burwell. What this case involves is a claim by a series of religious nonprofits, personified in yesterday’s protests by the Little Sisters of the Poor (what, you want to take away a nun’s rights? For shame!), who deeply oppose any provision of contraception to their employees. Under the Affordable Care Act, all employers over a certain size must provide insurance to their employees, and that insurance must include all FDA approved methods of contraception, without copay. Recognizing the religious opposition to this, the government put in a pair of opt outs – religious groups such as churches could avoid this provision entirely; religious non-profits, such as the plaintiffs here, on the other hand, could sign a form, and mail it to the government, who would, in turn, require the insurance provider to provide this service to the employees.

So what brought us to the steps of the Supreme Court? That generous accommodation wasn’t enough for these groups. The Little Sisters of the Poor, East Texas Baptist University, Priests for Life and other groups are now claiming that signing the piece of paper itself, and placing it in the mail to the government violates their religious freedom. In the words of the Religious Freedom Restoration Act, the law under which they are suing, such a requirement places a substantial burden on their exercise of their religion. To them, signing the paper is a trigger for someone else providing the objected to contraceptives, and that makes the religious group as complicit as if they were throwing out birth control pills like candy in a grade school playground.

That is the sole basis of their argument. That signing a piece of paper expressing their desire to opt out of this requirement is itself a burden. And try as I might, I can’t wrap my legal brain around that. It literally has no basis in legal reality. The situation most analogous to this is the application for conscientious objector status. Once drafted, a person may claim a religious or philosophical opposition to military service. But to do so, they are required to write a letter explaining their opposition, and they are required to show up before a draft board and explain their position. If an exemption is granted, then someone else is drafted to serve in their place. Just because a religious person’s refusal to serve triggers a replacement being sent does not allow the legal responsibility to be imputed back onto the original conscientious objector. He does not have the right to demand not only that he does not serve, but also that no one serves in his place. To suggest that would be ludicrous – yet that is precisely what the plaintiffs suggested in the Supreme Court; not only should they be allowed not to provide contraceptive coverage, but no one else should be allowed to provide it in their place.

That’s where religious privilege has taken us the in the post-Hobby Lobby world. For religious groups, being allowed to not participate is no longer enough. They want to prevent contraception, not just avoid having to provide it. And while their utter inability to provide a legal justification for this is amusing to lawyers, it will, if permitted, have devastating real life consequences. Removal of no co-pay contraceptive care from hundreds of thousands, if not millions of women will set back health care in this country in multiple ways. It will disproportionately impact women of color, low income women, immigrant women, and women in physically and mentally abusive relationships.

The religious groups on the other side of the debate don’t care about that, though. They were there on the steps of the Court yesterday as well. They had nuns, and bused in parochial school children, and clean cut Oklahoma students. They sang God Bless America and wrapped themselves in the flag, and vilified us for not somehow not letting the Little Sisters of the Poor be nuns, as if signing a piece of paper would mysteriously destroy their wimples. But all the sham patriotism and glam posters they could bring can’t mask the underlying fact – they have no moral, and no legal case here. That’s why CFI (with support from our friends at American Atheists) filed an amicus brief in this case. That’s why we joined the protests yesterday. To defend the country from legally ludicrous religious privilege, and to defend the rights of all women to access to contraceptive health care. And yes, even the rights of the parochial high schoolers dragooned into protesting against us. Teenagers have a right to contraceptive health care too, and we’ll stand up to defend it for you.

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Image by the Center for Reproductive Rights