RFRA http://www.pfaw.org/ Fri, 06 Nov 2015 14:37:15 -0500 Fri, 06 Nov 2015 16:12:55 -0500 SCOTUS Will Hear Latest Contraception Coverage Refusal Cases http://www.rightwingwatch.org/content/scotus-will-hear-latest-contraception-coverage-refusal-cases-0 <img class="imagefield imagefield-field_teaser_astory" width="390" height="250" alt="" src="http://www.pfaw.org/sites/default/files/images/a_story_images/birth_control_4_A.jpg?1330981293" /> <p>The Supreme Court today announced that it will hear several cases involving the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act&rsquo;s contraception coverage requirement.&nbsp; This is not a surprise; as People For the American Way Foundation wrote in its&nbsp;<a href="http://www.pfaw.org/press-releases/2015/09/edit-memo-supreme-courts-2015-2016-term-preview#religiousliberty">Supreme Court 2015-2016 Term Preview</a>:</p> <p style="margin-left:.5in;">Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.&nbsp; But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).&nbsp; Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.</p> <p style="margin-left:.5in;">The list of circuit courts that have roundly rejected this argument is long:&nbsp; The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.&nbsp; But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.&nbsp; Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.</p> <p>The premise of those challenging the accommodation is a <a href="http://www.rawstory.com/2015/10/hobby-lobby-strikes-again-as-christians-seek-exemptions-from-birth-control-and-marriage-laws/">severe distortion of RFRA and of the very concept of religious liberty</a> set forth by the Court&rsquo;s hard-right conservatives in the 5-4 ruling in <em>Hobby Lobby</em>.&nbsp; That law was passed with overwhelming bipartisan support in 1993 as a means to protect the free exercise of religion.&nbsp; But conservative ideologues have sought to transform RFRA from a shield into a sword, one that they can use to violate the rights of third parties.&nbsp; The right wing&rsquo;s enthusiastic embrace of Kentucky county clerk Kim Davis shows just how far they want to extend the reasoning of <em>Hobby Lobby</em>.</p> <p>Here, the conservatives argue that filling out a form so that insurance companies can know about their legal obligations to provide certain coverage is a substantial burden on the exercise of their religion.&nbsp; That strained reasoning is a cynical use of religion to deprive women of needed healthcare, an effort to force women employees to live by their employers&rsquo; religious strictures rather than their own.&nbsp; But what the Supreme Court said about the First Amendment in a 1985 case called <em>Estate of Thornton v. Caldor</em> is equally true of RFRA:</p> <p style="margin-left:.5in;">The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. [quoting from a lower court opinion by Judge Learned Hand]</p> <p>Justice Kennedy, who voted with the <em>Hobby Lobby</em> majority, is likely to be the deciding vote in this case.&nbsp; His concurrence in <em>Hobby Lobby</em> hinted that he might not go as far as his fellow conservatives in granting people the latitude to use RFRA to deprive others of their rights:</p> <p style="margin-left:.5in;">Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. &nbsp;Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.&nbsp; In these cases [involving for-profit employers] the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here [the accommodation for religious non-profits].</p> <p>Given the circuit split on the accommodation for religious nonprofits, the Supreme Court had little choice but to take this issue on.&nbsp; They do have a choice, however, in how they rule.&nbsp; Hopefully, a majority of justices will take the first step in restoring RFRA to the law it was intended to be.</p> Paul Gordon ACA Affordable Care Act C4 contraception health care healthcare Hobby Lobby Patient Protection and Affordable Care Act Reproductive Health RFRA Supreme Court Women&#039;s Health Zubik v. Burwell Fair and Just Courts Fighting the Right 65001 Fri, 06 Nov 2015 15:37:15 -0400 RFRA Federal Court Rejects Another Bogus 'Religious Liberty' Claim From Religious Right http://www.rightwingwatch.org/content/federal-court-rejects-another-bogus-religious-liberty-claim-religious-right <img class="imagefield imagefield-field_teaser_astory" width="390" height="250" alt="" src="http://www.pfaw.org/sites/default/files/images/a_story_images/gavel-const-flag-A2.jpg?1369838117" /> <p>The Tenth Circuit today released its opinion in <a href="http://www.ca10.uscourts.gov/opinions/13/13-1540.pdf"><em>Little Sisters of the Poor v. Burwell</em></a>, becoming the latest federal appellate court to reject the claim that the Obama Administration&rsquo;s contraception coverage accommodation for religious nonprofits violates their religious liberty.</p> <p>This is the latest effort by the far right to redefine &ldquo;religious liberty&rdquo; and the Religious Freedom Restoration Act (RFRA) to use as a sword to deprive third parties of their legal rights.&nbsp; Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.</p> <p>The Tenth Circuit now joins the <a href="http://blog.pfaw.org/content/dc-circuits-nina-pillard-writes-ruling-upholding-aca-contraception-coverage">DC Circuit</a>, the Third Circuit, the Fifth Circuit, and the Seventh Circuit in rejecting this attack on the accommodation for religious nonprofits.&nbsp; Notably, all these decisions came after the Supreme Court rewrote the Religious Freedom Restoration Act (RFRA) in the <em>Hobby Lobby</em> case, giving certain for-profit corporations and their owners greater latitude to exempt themselves from laws they find personally offensive.&nbsp; (The Sixth Circuit also reached the same conclusion, but it is still in the process of reconsidering it to make sure it is consistent with <em>Hobby Lobby</em>.)</p> <p>The Obama Administration created a process whereby religious nonprofits can exempt themselves from the federal requirement that its employees have certain contraception healthcare coverage: Fill out a form (or now, just send a letter) and let the Department of Health and Human Services know that you won&rsquo;t be providing it and say who your insurance carrier is, so that officials can inform them of their legal requirements to provide the coverage.&nbsp; The religious right has called even this accommodation a violation of the religious liberty rights of nonprofits, saying it makes them complicit in the provision of contraception that violates their religious beliefs.</p> <p>The Tenth Circuit concluded that the accommodation does not substantially burden Plaintiffs&rsquo; religious exercise and therefore does not violate RFRA.&nbsp; The court stated:</p> <p style="margin-left:.5in;">The accommodation relieves Plaintiffs from complying with the Mandate and guarantees they will not have to provide, pay for, or facilitate contraceptive coverage.&nbsp; Plaintiffs do not &ldquo;trigger&rdquo; or otherwise cause contraceptive coverage because federal law, not the act of opting out, entitles plan participants and beneficiaries to coverage.&nbsp; Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.</p> <p>The court does not question the sincerity of the plaintiffs&rsquo; assertion that filling out the form violates their religious beliefs.&nbsp; But it also pointed out that under RFRA, whether a burden is substantial is a legal question that is up to the court, not the plaintiff, to answer:</p> <p style="margin-left:.5in;">If plaintiffs could assert and establish that a burden is &ldquo;substantial&rdquo; without any possibility of judicial scrutiny, the word &ldquo;substantial&rdquo; would become wholly devoid of independent meaning. &nbsp;Furthermore, accepting any burden alleged by Plaintiffs as &ldquo;substantial&rdquo; would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.&nbsp; (internal citation removed)</p> <p>Whether it&rsquo;s women&rsquo;s ability to access their legal right to healthcare or same-sex couples&rsquo; ability to exercise their constitutional right to marry, imagine the chaos if people could simply exempt themselves from &ndash; and severely weaken &ndash; laws they disapprove of by citing their personal religious beliefs.</p> <p>But that is a recipe for a Balkanized society, not a healthy pluralistic democracy.&nbsp; Citing a previous case, the Tenth Circuit states: &ldquo;Law accommodates religion; it cannot wholly exempt religion from the reach of the law.&rdquo;</p> <p><a href="http://blog.pfaw.org/content/yet-another-circuit-court-upholds-aca-accommodation-religious-nonprofits"><em>This post originally appeared on the blog of People For the American Way.</em></a></p> Paul Gordon ACA Affordable Care Act C4 contraception Lower Federal Courts Patient Protection and Affordable Care Act Religious Freedom Restoration Act RFRA Tenth Circuit Court of Appeals Women&#039;s Health Fair and Just Courts Fighting the Right 59246 Tue, 14 Jul 2015 16:40:35 -0400 RFRA