People For the American Way Foundation

“Hobby Lobby II” Distorts the Principle of Religious Freedom

The following is a guest blog by Rev. Faye London, a member of the VASHTI Women’s Initiative within People For the American Way Foundation’s African American Ministers Leadership Council.

The Little Sisters of the Poor Home for the Aged v. Burwell case – which has now been consolidated with similar cases under the name Zubik v. Burwell – is a continuation of a strategy by the Right to gut the Affordable Care Act since they have been unable to repeal it. All of these cases are framed as "religious freedom" cases, yet trying to limit women’s reproductive freedom is based on a twisted understanding of what the original Religious Freedom Restoration Act (RFRA) was meant to address.

Congress passed RFRA more than 20 years ago when the Supreme Court refused to protect native and indigenous individuals from being denied government benefits because of drug tests detecting peyote, a substance that was used in their religious ceremonies. RFRA was passed to protect people from having their free exercise of religion violated by the government.

Like so many others, this law has become a victim of targeted reinterpretation. In 2014, the Hobby Lobby decision made it legal for a corporation to act as an individual with regard to religious freedom. It also redefined religious freedom, so that people and corporations could use RFRA to avoid obeying laws that offend their religious beliefs, but don’t actually limit their free exercise of religion. Several states also considered laws intended to make it legal for any person or business to cite religion in order to ignore laws prohibiting discrimination against same gender loving people. And while that aspect of the debate was all over the news, the threat to women’s health posed by laws like this grew quietly in the background.

The case now at the Supreme Court attacks a vital piece of the puzzle by which ACA protects women's health by requiring health insurance to include contraception coverage without charge. There is an accommodation already in the law that sets an alternative route to coverage for women who work for nonprofit religious organizations that disapprove of contraception. All the organization has to do is fill out a very short and simple form or write a letter stating that as an organization they do not want to provide contraception, and they are relieved from that responsibility and the government takes over, directing the insurance company to pay for the contraception rather than the religious nonprofit. The Little Sisters of the Poor organization and others are saying that signing a one-page form is an "undue burden" on them morally, as it still constitutes participation in opening the way for women to access "sinful" contraceptive care.

This new trend is just another way to strip rights from poor people who depend on these services for survival. It is not about religious freedom. The accommodation is sufficient to protect the Little Sisters' religious freedom. This is about controlling women's bodies (and particularly poor women's bodies, since women of means can afford to pay out of pocket), in order to make space for those who would relieve themselves of any responsibility for ethical treatment of their employees or the public.