http://www.sfgate.com/politics/article/Supreme-Court-birth-control-ruling-could-ripple-5042744.phpSupreme Court birth control ruling could ripple widely Bob Egelko
Updated 10:31 pm, Friday, December 6, 2013
If a corporate employer can refuse on religious grounds to provide workplace insurance for contraception, what about employers with religious objections to blood transfusions or vaccinations? Or those who believe in healing by prayer?
Those questions lurk below the surface of the challenge the U.S. Supreme Court has agreed to review to regulations in the new federal health care law requiring employers to make contraceptive coverage available to their employees. That mandate, two groups of corporate owners argue, violates their freedom of religion.
If the court agrees, some legal analysts say, other employers would have an equal right to veto any type of health coverage that conflicts with their spiritual beliefs - insurance that covers transfusions, for example, and perhaps any type of conventional medical care, if the employer believes solely in spiritual healing.
The objections are based on a federal law forbidding government actions that burden the free exercise of religion, unless those restrictions are necessary to protect some vital public interest.
If an employer can invoke that law to withhold contraceptive coverage, other categories of health insurance may also be vulnerable.
"You can't really pick and choose among kinds of health care," because the question before the court is inevitably the same: whether the decision is up to the individual or her employer, said Dawn Johnsen, a law professor at Indiana University and a former Justice Department official in the Clinton administration.
The Supreme Court case has implications far beyond health coverage, said Elizabeth Sepper, an associate law professor at Washington University in St. Louis specializing in health care law.
As several lower-court judges have observed, she said, it would be hard for courts to draw a line between one religion's opposition to contraception and others' faith-based objections to antidiscrimination or labor laws.
"The entire regulatory state hangs in the balance here," she said.
Differing opinionsOther scholars disagreed. They noted that the Supreme Court will be looking at a 1993 federal law, the Religious Freedom Restoration Act, as the basis for an employer's objections to subsidizing insurance coverage that includes contraceptives. That law protects religious liberty but allows restrictions if necessary to protect a "compelling governmental interest."
"A court might say that contraception is relatively inexpensive and that failure to provide coverage for it is not sufficiently compelling to justify burdening an employer's religious liberty, while at the same time holding that failure to provide coverage for blood transfusions or vaccinations goes too far" because of the costs of getting those treatments and the potential health consequences of not having them, said Micah Schwartzman, a University of Virginia law professor.
Religious objections to specific health-care laws inevitably prompt unfounded warnings that they would lead to dangerous exemptions from a slew of government regulations, said Michael McConnell, a Stanford University law professor and former federal appeals court judge.
One source of such predictions, he said, was Supreme Court Justice Antonin Scalia, in a 1990 ruling that upheld state-law penalties against two American Indians for using peyote.
The defendants said the drug was part of their religious rituals, but Scalia said the government can enforce narcotics laws as long as they don't selectively target religious practices. Otherwise, he said, religious adherents will claim "exemptions from civic obligations of almost every conceivable kind," ranging from drug and vaccination laws to bans on child labor and animal cruelty.
1993 federal law
In response to the ruling, Congress passed the 1993 law that required the government to show compelling reasons for restricting religious liberty. None of the dire consequences forecast by Scalia has occurred since then, McConnell said.
