Category Archives: Blog Posts

You Can Call It “Grave Moral Evil”, But It’s Still Critical Health Care

Originally posted on the Gender & Sexuality Law Blog on August 14th, 2014. 

Image Credit: Getty
Image Credit: Getty

The words “religious freedom” used to bring to my mind the image of Samah, a girl in Colorado who was denied the right to play soccer while wearing her hijab until her high school teammates all wore them in solidarity to the next game. I used to think of the Christians in Egypt who formed a circle around their praying Muslim neighbors to keep them safe from the surrounding protests in the streets. I thought of individuals asserting their right to religious exercise, of people coming together to advocate for the right to worship free from discrimination. Now, I think of a hypocritical discriminatory craft store and get a very different picture in my head. I imagine the Supreme Court in an episode of Oprah’s Favorite Things, Justice Alito on stage facing Hobby Lobby executives and Wheaton College administrators: “And you get an accommodation! And you get an accommodation!” Except in this episode the women are furious, some are facing unwanted pregnancies, and the only gift under their chairs is the Bible.

When promulgating new regulations implementing the Affordable Care Act, the Department of Health & Human Services (HHS) included an accommodation form for religiously affiliated institutions and non-profit organizations, to allow them to refrain from paying for coverage of contraceptives if they had a religious objection to doing so. The regulations required the objecting organization to send a designated form to HHS and a copy to their third-party insurer, which was designed to let the insurer know that it must supply contraceptive coverage separately to plan members at no cost to the organization or the insured individuals. In the Hobby Lobby Supreme Court case, Justice Alito, writing for the majority, held that the non-profit accommodation had to be extended to closely held for-profit corporations. The extension of an already broad religious exemption delivered hope to the plaintiffs of many similar cases suggesting that they too might receive special treatment for their beliefs.

One problem with this decision is that exempting Christian organizations doesn’t just affect Christian people. Unlike houses of worship, religiously affiliated non-profits often employ workers who do not share the religious beliefs of their employers. Some hospital systems are religiously affiliated non-profit organizations, for instance, and may employ thousands of people with diverse beliefs. Another problem is that even organizations allowed to use the exemption have sued, saying that even the exemption violates their rights. Shortly after the Hobby Lobby decision came down, the Supreme Court issued a temporary order in favor of Wheaton College, a Christian school whose administrators object to providing emergency contraceptive coverage to employees and students. Wheaton claimed that even the paperwork for the accommodation was a burden on its religious exercise because “authorizing its [third-party administrator] to provide these drugs in [its] place makes it complicit in grave moral evil.”[1] The Court’s injunction allows Wheaton College to refuse to file the form with HHS and its insurance company and allows it to simply inform HHS in some written form of its objection, without having any obligation to inform its insurance company. This decision requires HHS to restructure how they manage accommodations so that they can handle more incoming requests.

The danger that women will slip through the cracks when it comes to a college or university affects not only employees, but also students who may have fewer resources for protecting their reproductive health. If a student is looking to purchase emergency contraception, shouldn’t he or she be able to do so without having to go through confusing roundabout coverage? Studies have shown that even moderate copays for health services can result in an individual not obtaining the care they need.

Where will the accommodations end? Laws that allow the very thing they are prohibiting cannot be effective, and they encourage discrimination and endanger citizens. As for the Supreme Court, the majority of the men on the bench seem to hold the claims of religious employers in high esteem, addressing the needs of the Hobby Lobby employees in just a few sentences[2]. The decision to grant Wheaton’s injunction demonstrates that the Court is venturing further into the minefield Justice Ginsburg warned of in her dissent from the Hobby Lobby decision,[3] and further and further away from the ideals for which our courts and country should stand.

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[1] Burwell v. Wheaton College, page 10 http://www.supremecourt.gov/opinions/13pdf/13a1284_ap6c.pdf 

[2] Burwell v. Hobby Lobby, page 45 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf 

[3] Burwell v. Hobby Lobby, page 94 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf   

Sasha Conley is the Public Rights / Private Conscience Project Summer Junior Fellow and a rising junior at Hampshire College.

Free Exercise & the Rapture: Can Parents Stop Educating Their Children Based on Religious Beliefs?

Originally posted on the Gender & Sexuality Law Blog on August 12th, 2014.

Image Credit: Skreened
Image Credit: Skreened

Do you need to know algebra in Heaven? The plaintiffs in a recent state court case in Texas think not. The plaintiffs, Michael and Laura McIntyre, removed their nine children from the public school system in 2004 order to homeschool them, which is perfectly legal in Texas (and many other states) providing that you actually do the “school” part of “homeschool,” not just the “home.” (Five of the children are still minors and at issue in the lawsuit.) But then they stopped homeschooling them too, because, it is alleged, they are convinced that (1) the Rapture is coming, (2) their children are sure to be raptured, and (3) apparently their children will not need any earthly education in Heaven. When the State of Texas filed truancy complaints against the McIntyres they sued for declarative and injunctive relief under the Texas Constitution and the Texas Religious Freedom Restoration Act, as well as the US Constitution and other Texas statutes. [1]

The McIntyres, being no fools, hired lawyers who had in fact gone to a lot of school, and who argued that Wisconsin v. Yoder gave the family the right not to educate their children. In Yoder, members of an Amish community challenged a Wisconsin state law that required their children to attend school until the age of 16, arguing that their free exercise rights should include the right to pull their children out of school at 14. The Supreme Court found they had a constitutional right to skip those last two years of compulsory education, focusing on the particular nature of the Amish community (insular, upstanding, self-sufficient) and the fact that almost all Amish youth, according to the Court, would be remaining in the Amish community and would need vocational skills more than traditional education.

The Texas Eighth District Court of Appeals ruled against the McIntyres, rightly holding that the US Constitution has never guaranteed an absolute right to control over a child’s upbringing or education, and that the facts in Yoder were so specific and context-dependent as to not be generalizable to other communities or fact patterns. But I want to briefly point out another problem with the claim in this case – which was an overlooked problem with Yoder itself. One problem with the outcome in Yoder that has not received sufficient attention is that it had the potential to impose serious burdens on Amish adolescents who might *want* more education and might *want* to leave the community, but who would be ill-prepared to do so if they had no legal right to attend school past the eighth grade. In my work on third-party harms from religious exemptions I have called the parties affected “existing rights-holders” and cautioned that religious exemptions can impose serious consequences on them. The Amish teens were such existing rights-holders – and so was at least one of the McIntyre children, Tori, who ran away from home in order to attend high school.  As I’ve argued elsewhere, a more robust way of understanding the interests of existing rights-holders when analyzing requests for religious exemptions (whether statutory or constitutional) would give us a more comprehensive picture of what’s at stake in these debates.

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[1] This case was slightly unusual because generally a court hearing a federal constitutional challenge as well as a state or federal RFRA challenge will reach the RFRA question first, and that will usually be dispositive, because RFRA provides more protection than the federal constitution for free exercise, so if you win under RFRA there is no need to reach the constitutional question and if you lose under RFRA it is very unlikely you would have a claim under the First Amendment. In this case however, the plaintiffs had failed to satisfy an exhaustion requirement for their state RFRA claim, and so the Court had to decide their First Amendment claim.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

When Reality Becomes Satire: Anti-Contraception Nurse Sues Family Planning Clinic For Not Hiring Her

Originally posted on the Gender & Sexuality Law Blog on July 24, 2014.

And now for an exercise in absurdity: a nurse who refuses to prescribe contraception is suing a family planning clinic because it refused to hire her. It refused to hire her for a very simple reason, which probably seems obvious: It’s a family planning clinic, and she refused to perform family planning services. Rather than take that as a fairly reasonable basis for rejection, and conclude that perhaps she would be happier and of more use in a different context (a crisis pregnancy center, perhaps), the nurse decided to sue the clinic, claiming that it discriminated against her on the basis of her religion. As the Huffington Post reported:

Sara Hellwege, a nurse in Tampa, Fla., applied for a job at Tampa Family Health Centers in May 2014. The organization receives federal Title X family planning funds, which means that it must provide women contraception and other family planning services. But Hellwege is a member of the American Association of Pro-Life Obstetricians and Gynecologists, and told health center staff that she would not be willing to prescribe birth control if she were hired for the job.

It’s almost hard to take this seriously, since it reads like an article from The Onion. But it’s not satire, it’s real life. And it’s the entirely predictable consequence of the isolation and stigmatization of contraception and abortion. Over the past several decades abortion has been singled out from other medical services and tainted with social stigma and controversy, even though it’s a basic health care service that approximately one in three American women will use by the age of 45. And now contraception is in danger of the same fate – the proliferation of religious objections to contraception, like those that featured in the Hobby Lobby litigation, conflates contraception with abortion and attempts to transform contraception from a health care necessity used by 99 percent of sexually active American women (aged 15-44) at some point in their lives to a socially controversial morally stigmatized landmine in the so-called “culture wars.” That’s no conspiracy theory – it’s the basis of the argument in the lawsuit, in fact: the plaintiff argues that contraception causes abortion, and that she is legally protected from discrimination on the basis of her refusal to perform abortions.

This nurse should lose her lawsuit, and not only because nurses should understand basic reproductive biology, especially if they want to work in reproductive health. If there was ever a good reason for declining to hire someone, it’s that the person refuses to perform the job for which they want to be hired. It’s particularly ironic that some houses of worship and religiously-affiliated non-profit organizations want an exemption to anti-discrimination laws allowing them to discriminate in favor of hiring co-religionists in certain settings. If the Catholic Church should be free to hire only Catholics, shouldn’t a family planning clinic be free to hire only people who actually believe in using – and will agree to dispense – family planning? Here’s hoping the court hearing her case has a sense of the absurd.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School. 

What a Difference Three Days Makes: The Hobby Lobby Fallout Arrives

Originally posted on the Gender & Sexuality Law Blog on July 3rd, 2014.

The Supreme Court is supposed to be the final word on our legal questions, but apparently it reserves the right to change its mind at a moment’s notice. When the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores on Monday June 30th, holding that the Religious Freedom Restoration Act required the government to allow for-profit businesses with religious objections to contraceptives to opt out of complying with the Affordable Care Act’s contraceptive coverage requirement, the majority opinion stressed at length the idea that the law was not narrowly tailored because the government could have offered for-profit businesses the same accommodation available to non-profit religiously-affiliated organizations. Under the regulations implementing the ACA, religiously-affiliated non-profit organizations are allowed to certify that they object to providing insurance coverage for contraception. They send that form to the government and to their insurance company, at which point their insurance company is required to pay for the coverage out of its own funds. The majority opinion relied on the existence of this program as proof that the government had a better option available to achieve its goal of universal contraceptive coverage. As Justice Alito wrote, that accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.”[1]

One might have thought this meant that the accommodation was, in fact, a legally acceptable system that would withstand a challenge under RFRA (given the lack of enforcement or monitoring in the regulation, it’s far from a morally acceptable system anyway). But only three days later the Supreme Court has issued an order temporarily enjoining the government from enforcing the requirement that a non-profit religiously-affiliated organization certify that it objects to coverage. There are almost 80 cases pending in the lower federal courts brought by non-profit organizations that claim that even signing the certification form is a substantial burden on their free exercise, because they believe that signing the form “triggers” the insurance company to provide the contraceptives and thereby makes them – the nonprofit organization – complicit. And not just complicit, but so complicit it violates their religious freedomLet me just be clear again, we’re talking about signing a form, the entire purpose of which is to excuse the organization from being required to pay for contraceptive coverage. The majority held that these organizations need not sign the form nor send the required notifications. Instead the majority arbitrarily rewrote the applicable regulations, making it the government’s responsibility to make sure that women receive seamless contraceptive coverage once they have received some kind of undefined written notice that an organization objects. (One presumes that a scrawled note on a cocktail napkin will suffice).

So why should we care? After all, what does it matter whether the organizations have to sign a form or send some other kind of written notice? It matters for a few reasons. First, it matters for the actual women employed by these religiously-affiliated organizations, which includes Catholic hospitals, religiously-affiliated universities, and other large complicated institutions that employ thousands and thousands of women. The accommodation already suffered from a lack of monitoring and enforcement mechanism, and now objecting institutions need not even sign a standard form, and the government is supposed to somehow ensure that all these women don’t fall through the cracks, if it chooses to do so – the order doesn’t require it to do so, and neither do the current regulations. We can hope for the best, but should be prepared for the worst on that front.

The dangers of this order go far beyond those women though. Misguided as the opinion in Hobby Lobby was – inaccurate and poorly-reasoned though it might have been – at least the objectors were arguably requesting relief from an actual legal requirement.[2] The objectors in these non-profit cases are already being given an accommodation. The idea that signing a form that allows one to get an exemption can itself be a substantial burden on one’s free exercise boggles the mind. It makes a mockery of the substantial burden standard – forget the word “substantial,” even of the word “burden.” It effectively deprives the test under RFRA of any real meaning, and hollows out the court’s evaluative role in adjudicating these claims. If signing a form that gives you access to an exemption is a substantial burden, then anything is a substantial burden, and there’s absolutely no check on what religious objectors can refuse to do.

The only silver lining is that these cases – and this result – make clear what we have long suspected: religious objectors to the contraceptive coverage requirement (and other equality measures) aren’t looking for a reasonable compromise. They are looking to reject secular governmental authority altogether in favor of obedience to a religious law, regardless of the fact that the vast majority of the actual individuals affected do not share their religion or their beliefs. It’s the tyranny of the minority, and it looks like it may be here to stay.

[1] Burwell v. Hobby Lobby Stores, slip. op. at 34 (available at http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)

[2] I say arguably because there was a strong argument in the case, first proposed by Marty Lederman but not accepted by the majority, that in fact there was no legal requirement to provide insurance coverage for contraception – rather there was a choice to provide comprehensive coverage or to provide no coverage and pay a tax to subsidize insurance on public exchanges instead. See e.g. Marty Lederman, http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law. 

Religious Discrimination and Racism: It’s Not Old News

Originally posted on the Gender & Sexuality Law Blog on June 4th, 2014.

Image Source: http://americanhistory.mrdonn.org
Image Source: http://americanhistory.mrdonn.org

In conversations about our work on religious exemptions law, I frequently compare the refusal to provide wedding-related services to gay couples or reproductive health care to women for religious reasons to the widespread refusal to provide services to African-Americans for religious reasons before, during, and even after the Civil Rights Movement. This comparison is most often met with dismissive incredulity: my audience insists that this did not happen, or that if it did, it was not widespread. But in fact, religious doctrine was routinely used to justify the extensive oppression of, and discrimination against, African-Americans, beginning with religious justifications for slavery and continuing through the 20th Century, particularly in the South under Jim Crow.  These arguments were more widespread before the Civil Rights Movement, but even as late as 1983 Bob Jones University, a Christian-affiliated school, was arguing in the Supreme Court that its racially discriminatory dating and marriage policies for students were constitutionally protected as a free exercise of religion. (The Supreme Court disagreed).

As it turns out, this argument is not old news. A new poll released this week finds that a full 10% of Americans think that business owners should be allowed to refuse service to African-Americans if the refusal is religiously-motivated. (Not to mention the 16% who believe business owners should be allowed to refuse service to LGBT individuals – that number is 15% when polled about refusing service to atheists and 12% for refusing service to Jewish individuals). Although that means the overwhelming majority of those polled do *not* support such exclusions, it’s still a striking result.

We should be concerned about these results not only for their face value, but because they point to a dangerous slippery slope. If we allow for-profit businesses (or even non-profit entities providing public services with public dollars) to refuse services to LGBT people or women on the basis of religious belief, we’re not just slowing or halting progress on civil rights – we’re actually leaving ourselves open to dramatic erosion. It’s hard to come up with a principled reason why a business should be allowed to discriminate, for religious reasons, on the basis of sexual orientation, gender identity, or sex – but not on the basis of race or another religion.

The real difference is that we have a national consensus that formal race discrimination (i.e., race discrimination directly allowed by law) is socially unacceptable. (I’m leaving aside the myriad consequences of more invisible structural racism – on which we do not have a social consensus at all). We don’t have that consensus on gender and sexual orientation. But social consensus can be a dangerously shifting base on which to build our civil rights protections. If the polls on refusing services to African-American or Jewish individuals show a growth in the numbers who find that outcome acceptable, and we have allowed religious refusals of services based on sex and sexual orientation, we are going to have a hard time preserving even the formal civil rights protections that those who came before us fought so hard to obtain.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law. 

What Do Tractors Have to Do With Birth Control?

Originally posted on the Gender & Sexuality Law Blog on May 21st, 2014. 

2013 tractorWhat do tractors have to do with birth control? I’m glad you asked. To find out, let’s take a look at a fascinating exchange that occurred recently during oral argument in one of the cases challenging the Affordable Care Act’s contraceptive coverage requirement. The dialogue was between the counsel representing Priests for Life and Judge Rogers of the United States Court of Appeals for the D.C. Circuit.[1] During oral argument, Judge Rogers launched a line of questioning based on a seminal case, Thomas v. Review Board of the Indiana Employment Security Division, in which the plaintiff, a Jehovah’s Witness, unsuccessfully applied for state unemployment benefits after quitting his job because the factory where he worked had transferred him from a closing “roll” department (which manufactured steel for industrial uses) to a department that produced turrets for military tanks. The Supreme Court held that the denial of unemployment benefits had violated Thomas’ free exercise rights, and famously opined that:

Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.[2]

Building on this case, Judge Rogers asked counsel for Priests for Life:

Would it have been open to the Court to have found that in fact, as a matter of fact, the munitions factory for which it [sic] worked was not supplying arms for the war, that in fact it was supplying gadgets for tractors used on farms? Could the Court have examined whether his statement about what his employer was doing was correct?

The Priests for Life lawyer responded that no, it could not, saying that “Even if the religious belief is based on a factual error, the court must accept that factual error.”

I want to highlight here the way in which this claim has implications beyond the particular cases that were heard at oral argument, which only focus on the accommodation offered to religiously-affiliated institutions. The position taken by the counsel for Priests for Life in the oral argument referenced above would insulate not only unknowable metaphysical questions, but distinctly knowable scientific and medical questions, from review when they are presented in the context of a request for a religious accommodation. The Court in Thomas v. Review Board was dealing with a situation in which the plaintiff’s chosen line – that he would work on steel for industrial uses but not for weapons – seemed like a reasonable line to draw, given the context of his beliefs. That was the question that the Court, rightly or wrongly, insulated from review. Thomas had said that he would not object to helping produce raw steel that could later be made into weapons, but that he did object to producing the weapons themselves. This was the distinction that the Court said was not appropriate to review. Whatever we may think of the implications of that sentiment, or how expansively it should be read, the idea that a mistake of fact cannot be reviewed is an entirely different – and enormously more capacious – assertion.

As an example of the danger of this principle, we need look no farther than contraceptive access, both in the other contraceptive coverage requirement cases and in other types of claims for accommodations that can impede contraceptive access, like pharmacist refusals and hospital services.  The entire basis of the claims in Hobby Lobby and Conestoga Woods is that the plaintiffs don’t object to providing insurance coverage for contraception generally, but “merely” those forms that they believe are abortifacients. “Believe” is the key word – the scientific and medical definition of abortion is the termination of a pregnancy, and a pregnancy only occurs when a fertilized egg has implanted in a woman’s uterus. The vast majority of scientific research and authority supports the proposition that contraception, including emergency contraception, works by preventing implantation, and does not affect an existing pregnancy. The assertion that a court cannot question the scientific validity of this belief – which, remember, is not a belief about the metaphysical question of “when life begins” but a belief about the scientific question of what constitutes a pregnancy and what can end it – insulates the entire matter from judicial review.

It is no accident that courts have been willing to by and large ignore the factual discrepancy between the “belief” about what constitutes an abortion and the medical fact about what constitutes an abortion in the contraceptive coverage requirement cases. Abortion exceptionalism means that when cases concern abortion – and these days, contraception – the usual rules of play seem to be suspended. It is hard to imagine that if the plaintiff in Thomas truly had been working in a factory that produced tractor parts, courts would have been as sanguine about that error as they seem to be about the idea that emergency contraception causes abortions, nor as willing to give it credence simply because it comes to them attired in the garb of a religious belief.


[1] Thanks to our colleagues at Hamilton and Griffin on Rights for alerting me to the exchange featured in this posting. They too note at the end of their post the connection to the contested definition of abortion I have explored here. I have relied on their transcription of the argument for this post.

[2] Thomas v. Rev. Bd. of the Indiana Emp’t Sec’y Div., 450 U.S. 707, 715 (1981).

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School.

Religious Accommodations Cost More Than Money

Originally published in Balkinization on March 26th, 2014.  Cross-posted on the Gender & Sexuality Law Blog on March 26th, 2014.

Yesterday the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).

This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” In the paper I provide a thorough analysis of the existing case law on this issue and propose both a novel framework for balancing such rights as well as insight into how to better utilize the existing constitutional and statutory doctrine toward this end.

In this short post, however, I simply want to draw attention to one particularly overlooked element of the contraceptive coverage requirement that can only be understood in relation to the “third parties” (female employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive coverage requirement, and analyzed everything – from the compelling interest the government advanced to the effect of already-existing exemptions – in terms of the tangible access or lack of access to contraception for the women affected. But law has more than practical impacts – it has important expressive impacts that are explicitly meant to, and do, shape social norms and priorities. In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. The importance of contraception to women’s equality has been recognized by the Supreme Court, and is featured prominently in the Government’s briefing on its compelling interest in the law. That equality is impossible to achieve without access to contraception. In that light, allowing religious accommodations without ensuring seamless and no-cost contraceptive access for the employees of objectors would be inflicting a serious expressive and dignitary harm.

Now compare that understanding to this exchange on pages 37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different.  In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. . . . Here . . . all we’re really talking about is who’s going to pay for a subsidy that the government prefers. This is not about access to the contraception.  It’s about who’s going to pay for the government’s preferred subsidy.

Clement’s description of what’s at stake is as minimal as can be: it’s just who is going to pay for contraception. It’s just a matter of money, with no expressive or dignitary implications. What is fascinating about this set-up is that Clement specifically contrasts this case to a race discrimination case, in which he happily admits that an employee discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury” that exists “even if they can get another job.” Contraception, on the other hand, is positioned as simply a consumer good in the market, with absolutely no greater purpose or significance. (Which is ironic, of course, since part of his argument is that his clients view it as a sin.)

This focus on expressive norms and purposes is not just theory-talk. It has direct implications for the way we understand the details of the doctrinal standards as well. In the second half of the argument the conservative justices hammered General Verrilli, arguing for the Government, on how the Government’s interest in the contraception coverage requirement could be compelling when there were allegedly various other exemptions in the law, including for companies with fewer than 50 employees, religious organizations, and grandfathered plans. Verrilli did his best to defend the exemptions, noting that (1) companies with fewer than 50 employees are exempted from providing all health insurance but must cover contraception if they choose to offer health insurance, (2) religious organizations are exempted if they are houses of worship but are only offered an accommodation that ensures access if they are religiously-affiliated nonprofits, and (3) that the grandfathered plans will decrease over the next several years until very few, if any, remain.

The conservative justices were particularly obsessed with the grandfathered plans, and Verrilli had a bit of a difficult time explaining why the practical impact of leaving millions of women without contraceptive access during the intervening years did not undermine the Government’s compelling interest. Embracing the expressive import of the contraception coverage requirement, however, would have cast the exemptions in an entirely different light. The expressive message of exempting small businesses from health care coverage requirements generally is far different than if contraceptive coverage was singled out from those policies. Similarly, the exception for grandfathered plans reads, expressively-speaking, as an administrative transition matter affecting all preventative health care coverage, along with other of the law’s requirements, not as a judgment about the importance of contraception. The religiously-affiliated organizations, meanwhile, are subject to an accommodation that ensures seamless coverage for women in their employ; it is true that the lack of an adequate enforcement mechanism sends a troubling expressive message about the importance of this right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to undermine it.

In other words, understanding the expressive impact of the law reframes the question of the baseline, helping us understand the compelling interest and narrow tailoring tests in a deeper, more coherent way. Such a perspective also has implications for the First Amendment analysis when it comes to whether a law is neutral or generally applicable, but like the Court I leave those questions for another day.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Center for Gender and Sexuality Law.