By Elise Viebeck - 05/22/12 09:00 AM EDT
The biggest legal threat to the White House’s birth control mandate could come from a decades-old law that was championed by liberal Democrats, according to legal experts.
The Religious Freedom Restoration Act (RFRA) has been mentioned in nearly all of the more than 30 lawsuits pending against President Obama’s administration over the mandate. One, filed by the University of Notre Dame on Monday, cited RFRA’s protections in the first paragraph.
Legal scholars see the merit in challenging the mandate with RFRA, which then-Rep. Charles Schumer (D-N.Y.) and the late Sen. Edward Kennedy (D-Mass.) introduced in 1993 to protect religious exercise from laws that might unintentionally restrict it.
RFRA sailed through Congress with broad bipartisan support in response to an unpopular decision by the Supreme Court that was seen as curbing Native Americans’ religious freedom to use peyote, a traditional hallucinogen.
Now it will force the government to prove that federal regulators did not have another way to expand women’s access to birth control that would be less burdensome on religion — an argument experts say conservatives can win.
“I think the odds are pretty good for the plaintiffs here,” Marc DeGirolami, an assistant law professor at St. John’s University, told The Hill.
Because of the law, courts now have to apply certain standards to federal actions that might inadvertently infringe on religious liberty. In one sense, laws under scrutiny must aim to achieve a “compelling” government interest. In another sense, they must be designed in a way that burdens religion as little as possible.
The second claim might be hard for the administration to meet when regulators could have taken many other steps — like expanding Medicaid — to provide better access to birth control, DeGirolami said.
“Even if one concedes that the state has a ‘compelling interest’ in ensuring that all women have free access to contraception,” he said, “there are many, many less restrictive means of achieving that interest.”
The Supreme Court decision that gave rise to RFRA, Employment Division v. Smith, caused a backlash in Congress when it was issued in 1990.
The case dealt with two members of the Native American Church who were denied unemployment benefits in Oregon because they had been fired for using peyote in a religious ceremony.
In the court’s majority opinion, Justice Antonin Scalia argued that Oregon could deny the benefits because its law banning peyote was neutral and generally applicable.
To exempt the men on religious grounds would mean issuing exemptions “from civic obligations of almost every conceivable kind” to religious people on an individual basis, Scalia wrote.
Under Obama’s birth control mandate, most employers must cover contraception in their employees’ healthcare plans without charging a co-pay.
Churches are exempt, and employees of religiously affiliated institutions such as Catholic hospitals will receive contraception directly from their insurance companies, still without a co-pay.
This accommodation aimed to quiet some of the backlash that followed the announcement of the mandate in January.
Supporters of the mandate made the case that women who choose to work in a Catholic hospital or school, which often employ and serve non-Catholics, should have access to the same birth control benefit as employees in an exclusively lay environment.
But in complaints against the administration, religious organizations demand exemptions for all their affiliated institutions.
In its suit, filed Monday, the Archdiocese of Washington argued that the accommodation is “illusory” because Catholic premium dollars would still flow to birth control.
“Catholic teaching does not simply require Catholic institutions to avoid directly paying for practices that are viewed as intrinsically immoral,” the complaint read. “It also requires them to avoid actions that facilitate those practices.”
The Department of Heath and Human Services hasn’t decided how the policy will apply to religious institutions that insure themselves, such as the Archdiocese of Washington.
Cardinal Timothy Dolan, who tops the Catholic Church’s U.S. hierarchy, praised the rising wave of cases against the mandate on Monday.
“Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now,” he said in a statement.
Planned Parenthood President Cecile Richards called it “unbelievable that in the year 2012 we have to fight for access to birth control.”