Rules Are for Schmucks: Religious Exemptions for Atheists?

Alice falls down the rabbit hole (Walt Disney Productions)

The Alice in Wonderland world of religious legal exemptions took an even stranger turn last month. Two strange turns, in fact, in one case.

At first glance, March for Life vs. Burwell seems generally similar to the 2014 Hobby Lobby case. The plaintiff is an organization dedicated to lobbying against abortion rights. Their central event is an annual protest in Washington, DC, on or near the anniversary of Roe v. Wade. They seem to have a knack for picking the most bitterly cold day of the year for their march. I almost, but not quite, feel sorry when I see them shivering out there.

Anyway, like other businesses, they are required to include contraceptive coverage in their employer-sponsored healthcare plan. And like the owners of Hobby Lobby, they object to this, especially with regard to certain types of contraceptives they regard as abortifacient. But there is one critical difference. The owners of Hobby Lobby base their objection to providing contraception on religious grounds, but the board of March for Life emphatically does not. In fact, one of the constituent members of March for Life is a little group called Secular Pro-Life, which is explicitly nonreligious. It’s quite possible to be opposed to abortion on entirely non-supernatural moral grounds, and these folks are. A small minority view, perhaps, but a legitimate view nonetheless. So unlike Hobby Lobby, March for Life cannot rely on the religious exemptions provided by the Religious Freedom Restoration Act of 1993 (RFRA), because its beliefs are not “religious.”

No problem, according to Judge Leon. He doesn’t even bother with RFRA, but focuses instead on regulations the Obama administration wrote when it first started implementing the Affordable Care Act (ACA). Bowing to political pressure, these regulation-writers said that churches need not provide contraceptive coverage in their healthcare plans. But since they didn’t want to admit this was “because of political pressure,” they instead based the exemption on the theory that church employees were “less likely” to want contraceptive coverage in the first place.

A dubious proposition to say the least, given the surveys showing how non-seriously Catholics take their church’s edicts against birth control. And now it has come back to bite the administration, because Judge Leon ruled that there is no “rational basis” for exempting religious organizations (whose employees may or may not be anti-contraceptive) from the rule while not exempting March for Life (whose employees, it insists, are definitely anti-contraceptive).

Some of us would say that the lack of a “rational basis” for exempting church organizations from the contraceptive coverage rule means that the exemption ought to be null and void. Judge Leon twists the logic the other way and says that the exemption for church organizations means that every organization that can plausibly claim opposition to contraception needs to be exempt, whether it’s religious or not. Otherwise, he frets, there might be “regulatory favoritism.” Hence, we now have religious exemptions extended to atheists. Go figure.

All of which is not the nuttiest part of this case. That honor is reserved for the count in which two individual employees of March for Life also sued for exemption, this time claiming protection of RFRA itself. These two employees do happen to be religious (at least they say they are). They also say their religion prevents them, as individuals, from being able to participate in an employer-provided health plan that provides other participants with access to contraception.

They won. According to Judge Leon, the “least restrictive means” under RFRA of providing access to contraception to women who want it is not to force all employees to pay for it. It’s to force only those have no objections to contraception to pay for it.

The problem here is RFRA itself, not Judge Leon’s interpretation of it, which appears to be correct. But his opinion seems to mean that any employee of any employer—e.g., General Motors, Microsoft—has the right to demand a healthcare plan that doesn’t cover contraceptives.

If employers have to make available healthcare insurance alternatives that don’t include contraception to their “religious” employees, then what’s to bar people who have no use for contraception from taking advantage of these cheaper plans as well—thereby driving up the cost for those left holding the bag?

This is the hole Democrats dug when they adopted RFRA back in 1993 and made even bigger when they exempted churches from part of the ACA rules in 2012. It’s a perfect example of why we need to get back to one set of laws that treats everyone the same.