RJ Court Watch: Contraception and the First Amendment

In the first episode of Rewire's new podcast, RJ Court Watch, Imani Gandy and Jessica Mason Pieklo discuss the legal challenges to the contraception mandate, including whether or not corporations can exercise a conscience, and whether or not the First Amendment speaks to or has any role in governing employee health insurance plans.

Elizabeth Sepper (left) and Greg Lipper. Washington University Institute of Public Health / Americans United for Separation of Church and State


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Related Links

The Establishment Clause: A Simpler Answer to the Contraception Question?

Sides Drawn in the Contraception Cases

Corporations Claiming Religious Liberty Try to Infringe on Their Employees’ Religious Liberty

University of Notre Dame Students Intervene in Contraception Fight


Welcome to RJ Court Watch, a legal podcast by Rewire with your hosts senior legal analysts Imani Gandy and Jessica Mason Pieklo. In this episode we’ll discuss the legal challenges to the contraception mandate, including whether or not corporations can exercise a conscience, and whether or not the First Amendment speaks to or has any role in governing employee health insurance plans.

JMP: Hello Imani

IG: Hi Jessica, how are you?

JMP: I’m doing ok, thanks. I’m a little baffled, frankly, that the inaugural episode of the legal podcast is going to focus on contraception because its 2014 and I would assume that the battle over whether or not contraception is something that people should have access to is up for debate.

IG:  Yeah, it’s pretty depressing. But it’s not that depressing when you think about the fact that contraception just became legal, what is it forty years ago, fifty years ago, wasn’t Griswold v. Connecticut 1965 I want to say off the top of my head.

JMP: Excellent point.

IG: It just seems to me we are living in a world where anti-choice forces, anti-woman forces are trying to take us back to a time where not only did women not have control over their bodies but they weren’t even allowed to take something as simple as birth control.

JMP: Right, and so, you know, that whole fight the first time around was fought under the guise of privacy, and the right to privacy, and now what we’ve got is this whole other line, or front I guess we could call it, is in the First Amendment. And that is whether or not corporations, for profit or not-for profit, can exercise religious beliefs that trump those of their employees. So those are some of the things that we hope to unpack a little bit at least in this episode.

IG: Yes, I think that it’s really important as our guests on this particular podcast will show, to center women in the debate about contraception. I think up until now, before the intervenors in the University of Notre Dame case, we haven’t heard from the women who would be affected by the efforts of these non-profit and for-profit corporations attempts to deny them access to contraception. So I’m glad to see that there are intervenors, that there are three students at the University of Notre Dame that are willing to stand up and say ‘what you are doing affects me and what you are doing infringes upon my rights.’

JMP: Right, and so what we’ll be able to talk about today, and hopefully explain for the listeners, is not just what on earth is going on with the fight over contraception, but how is this playing out both legally and politically. We’ve got the for-profit challenges in the Hobby Lobby case which we’re going to talk a little bit about, and we’ve got the religiously affiliated non-profit challenges in the University of Notre Dame case which we’re also going to talk about. So, stay tuned.


JMP: This is Jessica Mason Pieklo and I am joined with Imani Gandy, Senior Legal Analyst at Rewire and we have Greg Lipper, and attorney with the nonpartisan Americans United for the Separation of Church and State. And his organization represents a group of students at the University of Notre Dame who have intervened in the University’s legal challenge to the contraception mandate and its accommodation for religiously-affiliated nonprofits. Greg’s here to talk with us about the  University of Notre Dame case, the contraception mandate challenges generally, and the Establishment Clause. So, thanks for joining us Greg.

GL:  Thank you for having me.

JMP:  Lets start off by explaining the difference in the University of Notre Dame’s case from say, Hobby Lobby’s.

GL: Sure. So there’s basically two main group of cases. The first group of cases has been brought by for-profit corporations, and so Hobby Lobby is probably the most famous of these cases. Hobby Lobby is a large chain of retail craft stores. That case is now in the Supreme Court. Another case also at the Supreme Court is Conestoga Wood which makes like speciality wood products like kitchen cabinets. There’s you know, cases like Eden Foods, which makes organic produce or organic food and organic dry goods. So these are all companies that are owned by individuals who claim to object to providing coverage for some or all forms of contraception. And this group of cases is going to be heard by the Supreme Court in March. The second group are the cases brought by non-profit entities, and some of them are universities like Notre Dame, others are religiously-affiliated social service providers. You know, groups like Catholic Charities and similar groups. There’s two major differences. One is just the entities bringing the lawsuit, so you know, Notre Dame, Catholic Charities, groups like that you can at least arguably have some religious mission associated with them whereas an entity that sells paper mache or plywood, its much harder to see what the religious connection there is.

But the second major difference is that the non-profit entities don’t actually have to provide contraception coverage because the Obama administration, in response to some of the outcry provoked by the contraception rules actually created a very significant accommodation. And so these non-profit entities all they have to do is certify that they object on religious grounds to including contraception coverage in their insurance plans and then that coverage is then provided to their students or to their employees by a third-party insurance company at no cost to the people covered by the plans and at no cost to the nonprofits themselves. And so in these non-profit cases, we’re basically, in some senses its been characterized as these entities are asserting a religious objection to paperwork. You know, slightly less absurdly, but also less charitably what they are saying is that not only do we object to providing contraception coverage in our insurance plans, but we object to other people providing contraception to people covered by our plans. And so the nature of their objection really starts to look like an objection to these folks getting contraception by any means, not just, you know, indirectly through their own insurance policies.

JMP: So how is it that the University of Notre Dame and other religiously-affiliated non-profits are making this argument that a third-party providing contraception is a violation of some religious right that they have? Can you explain that a little bit more?

GL:  We have kind of dueling analogies in these cases, but the way that this works is that basically if I’m Notre Dame and I don’t want to provide this coverage, then I fill out this form that says I object to providing contraception on religious grounds. That form gets submitted to the insurance provider. Once my insurance provider knows that I object on religious grounds, and they know that I object on religious grounds through my form, the insurance provider then arranges to provide the coverage. And so what these entities are saying is that we are still the triggering event, that but for our filing out and signing this form this process by which our employees and students get covered would not take place. The analogy they use is that its like me lending my car keys to a friend who is going to take my car and rob a bank with it. I may not have an objection to the act of giving them my keys, but if I know they are going to take my keys and use my car to go rob a bank, then I object.

You know, there’s really two problems with that analogy. The first is obviously the insurance company has to know do I provide contraception coverage or do I not? The law says the insurance companies need to provide contraception coverage. If there isn’t a means by which the nonprofits can say, no no, don’t provide the coverage, there’s no way the scheme can work. Right? It would be like, if I were a judge and I objected to hearing death penalty cases and then turning around and saying not only do I object to hearing death penalty cases, but I object to stating my objection to death penalty cases because once I do that, that is the triggering event to the case getting reassigned to another judge who might impose the death penalty. So as a result I have a right not only to not hear the death penalty case, but to just have it languish in my courtroom and never get adjudicated.  And that really goes to the second point, which is, you know I think already with Hobby Lobby and the for-profit cases the nature of the companies’ objections is claiming a religious freedom violation from the independent decisions of their employees to use contraception. But when you get into these nonprofit cases, when the objection is to even filling out a form that would enable some third-party provider to provide that contraception, I mean it really starts to look like hostage taking. Like I will refuse to offer contraception coverage to you and I will do everything in my power to block third-parties from providing you with the coverage. These objections by the nonprofits really exposes, quite vividly, that this is about re-litigating the culture wars, re-litigating what we had all thought had been resolved by the early 1960s which is that contraception is something that is accepted and used by not only most Americans, but most religious Americans.

JMP: That’s fascinating to me on so many levels, not least of all is the analogy by the University that providing someone coverage for contraception is like providing someone the keys to your car to commit a felony because we all know that public health issues and crimes are one-in-the same.

GL: I mean, at some level we’re lawyers, and we explain things through analogies, and part of our legal training and tradition or the method of legal reasoning we use is to pick an analogy and make it a little more absurd or extreme sounding and then like test the underlying principle. And so on the one hand its like, oh of course they’re using a crime analogy. But on the other hand, right, when you stop and think about it are we really now back to analogizing contraception to crime, and when you stop and think about it like a normal human being it is quite absurd. Even at Notre Dame there are reports and studies showing that even amongst Catholics, something like 98% of Catholic women who had sex with a man at some point used contraception that was prohibited by the Vatican. So it makes these bank robberies or other analogies that go even further than that quite absurd.

JMP: Well and another significant difference in the Hobby Lobby case and the Notre Dame case is that your organization is actually representing the interests of some individuals who are immediately impacted by the University’s decision, that is, some students involved. Can you talk about that?

GL: Sure. So one of the problems with the ways these cases have played out in court is that the contraception regulations are coming from the government and the religious liberty claims are being asserted by the employers. So you have these cases where you have an employer asserting a religious liberty interest and then you have the government in court defending its regulatory program. That leads to two consequences. One is that the actual affected women are not formally represented in court. And two, does this infringe on your religious liberties interest, but with insufficient consideration for the impact of those interests on the interests of third parties. So our intervention on behalf of the students at Notre Dame marks the first and only case in which the actual people who will lose contraception coverage are being heard from. And I think that’s very important because you hear on the other side ‘well why doesn’t the government, you know, just extend the exemption? What’s the harm?’ Well the harm is that your employees and your students get denied access to contraception coverage.

And then the second piece of this is that there are certain arguments the government could have made in defense of its regulations but it has not made for reasons that I think are unique to the government. And two of those arguments are one, that if I’m an employer and I dont want to offer insurance coverage to my employees, all I have to do is pay a $2000 a head tax to the government and then I have no obligation to provide any coverage. That is a lot cheaper than providing insurance. Now you might say, well why is that better? Not only are they not getting contraception coverage, they’re not getting any coverage at all. But once the employer drops coverage, they can pass some of that savings along to employees in the form of higher salary. But also, for people below a certain income level if their employers don’t offer insurance coverage they then qualify for significant subsidies to buy their own policies on the public exchanges. And then they can buy their own policies and not have to worry about the religious beliefs of their employers’ owners. It’s the type of argument that really does illustrate another hostage-taking type thing. You know, its like, saying ‘I insist on providing you coverage and thereby prevent you from going on the exchanges and getting coverage that better meets your needs, but I insist not only on providing you coverage but providing you coverage that does not cover contraception and thus leaving this gap in your coverage that other people don’t have. And so that’s the first argument that we’ve made. And the government has not made this argument for both policy and political reasons because the government does not want to appear to be suggesting that employers should drop coverage.

The second argument we’ve made–and let me do a bit of background–the main argument being raised by the plaintiffs in these challenges is under a federal statute called the Religious Freedom Restoration Act. And that statute provides for accommodations of religious beliefs in certain circumstances. And so the second argument we’ve made is that to apply that statute here in a manner that enables these employers or these universities to burden third parties, that is in other words to burden third parties in their employees or students who would otherwise be eligible for contraception coverage violates the establishment clause. Because it’s basically saying well you have a religious belief and because of your religious belief you get to impose costs on someone else, directly privileging the interests of a believer over the interests of a non-believer. So that’s the second argument we’re making. That’s another argument that the government has not been inclined to make, because they as the government have an obligation to defend federal statutes and they don’t want to be making an argument that this Religious Freedom Restoration Act has Establishment Clause problems because that could come back later and bite them when they want to enforce the statute.

IG: This is Imani, if I could just jump in to ask one question. I wonder how you would respond to Notre Dame’s claim that the government is not entitled to institute any federal regulation that violates RFRA and that because the contraception mandate RFRA, nobody, the students at Notre Dame or the employees at Hobby Lobby is entitled to this benefit in the first instance.

GL: There’s no question that the RFRA provides a general scheme of accommodations that unless a particular federal statute says ‘RFRA does not apply’ RFRA is there. But RFRA does not say you automatically win, notwithstanding anyone else’s interests. I mean RFRA has a scheme. You have to establish that complying with the federal regulation substantially burdens your religious exercise. Even if you do that the federal government’s regulation continues to apply if it is the least restrictive means to achieve a compelling governmental interest. And even if it isn’t, that the accommodation or the exemption you’re requesting has to comply with the Establishment Clause. So it is no answer to simply say, well RFRA is there so your obligation is void at the outset. The question is does this particular obligation raise problems under RFRA.

And I think what the federal health care law is doing is setting the terms of another part of employment compensation. If you’re going to offer health insurance coverage it has to meet certain requirements in the same way that if you employ people you have to pay them a certain amount of money. And there have been Free Exercise challenges both pre and post RFRA to minimum wage laws, to equal pay laws, you know in other words people have raised religious objections to paying women the same as men. And those claims have been rejected. And one of the reasons those claims have been rejected is that recognizing a cognizeable Free Exercise interest there imposes significant burdens on third parties. It’s like, I understand you may have a religious objection to treating women as equals in the workplace as men, but that doesn’t mean women have to subsidize that religious belief by getting paid less in violation of equal pay laws. And the contraception regulations are similar in nature. You may have a religious objection, but ultimately the question is, is providing a certain basket of insurance coverage to employees that you chose to cover, or students that you chose to cover, does that constitute a substantial burden on your religious exercise.

JMP: Greg thank you so much. You have been absolutely amazing in helping parse through the garbage in a lot of these cases because I think this last point that you made is incredibly important and incredibly useful which is that we’re really seeing two parallel tracks here. We’re seeing the legal challenges and developing legal theories which may have broader implications. You mentioned Free Exercise challenges historically to things like equal pay and if there is this broad exemption on religious grounds who knows what the limit of that doctrine is. But then also this sort of political challenge that is going on, and the way these cases are being used rhetorically to push an anti-contraceptive agenda and maybe politics alongside of that. So I just want to say thank you very much and that I hope you talk with us again as these decisions come down because I have a feeling we’re going to have a lot more to parse through too.

GL: My pleasure. And can I actually add one more thing on the political subtext? Both of us alluded to the political subtext. There are a couple of little things, or maybe not so little things, in a number of these cases that also suggest that what’s going on here is as much political opposition to the health care law as it is genuine religious objection to contraception. So let me just outline a couple of them. The first thing is that cases brought by Catholic affiliated institutions, companies owned by Catholic owners, they say we follow the Catholic heiarchy’s teaching that all contraception is immoral. But there’s this other group of cases, particularly companies owned by Evangelical Protestants, dont object to a majority of contraception, but to particular forms of contraception that they consider to be abortifacients because they believe they take a fertilized egg and prevent it from implanting in the uterus. Now the science shows overwhelmingly that is in fact not the mechanism of action by which emergency contraception and the IUD work. But that has been the hook–there’s some indication that this has been a relatively new argument, even among Evangelical Protestants, that there has not been this long history of opposition, even to emergency contraception and IUD. And, in fact, many of the plaintiffs, for instance Hobby Lobby who had become the signature case, for all these years did offer coverage for even emergency contraception and the IUD in its insurance policy. What it says in its lawsuit is that after the federal contraception regulations came out it looked into its policy and quote unquote discovered that it had been covering these things all along and now decided it didn’t want to cover it. The government chose not to contest the sincerity of their religious beliefs, so we may not ever get to the bottom of that. But you, know, you have these little things. There’s the Eden Foods case which is another one I mentioned which is the organic foods company. The owner of that company gave an interview with Salon in which he was being asked why do you object to this, and he basically said look I don’t care if its contraception or Jack Daniels I don’t want the government telling me what to buy. And that again, I think quite explicitly, seems to suggest that was a political opposition.

In the Notre Dame case, and this is something we’ve pointed out in our brief and that we’ve reserved the right to argue if the case goes forward on the merits. So I mentioned a few minutes ago that there was this five or six month delay in the final rule coming out over the summer and Notre Dame deciding to file its lawsuit. But Notre Dame it appears had actually initially made a decision that it was going to comply and provide contraception coverage in its health plans and had even printed up brochures–I forget if it was an employer or student brochure, that reflected it was going to begin offering coverage. There was then a movement by at least one major donor organization objecting to that decision and Notre Dame then did an about-face and decided it was going to challenge it. But there’s some indication that Notre Dame’s lawsuit is driven largely by donor pressure and not by a sincerely held religious objection to providing contraception. Now of course its donor may have a religious objection to it providing contraception. All of which it is to say that there is a lot going on here. I do wish the government had in some cases more aggressively challenged sincerity or at the very least taken discovery into these issues because I think in many of these cases the nature of the objection is more complicated. You know we all heard those comments by Gov. Huckabee the other day talking about how Democrats and the government, quote unquote ‘Uncle Sugar’ suggesting that women couldn’t control their libido by providing contraception. But Gov. Huckabee, I think in 2006 signed a law that said if you cover prescription drugs, all of which is to say people’s views on contraception seem to have changed quite a bit once contraception coverage became part of the Affordable Care Act. So I think there is a more complicated story here. Perhaps it will be more fully exposed once the legal historians start looking at this phase of American legal history. But I think there is a lot of political subtext here. And I’m not sure how much of it is really in front of the courts, and I kinda wish more of it was.

IG: Yeah that’s really interesting because the same thing happened with Catholic Health Association initially was for the accommodation, then a couple of months later came back and said no no no we actually don’t like the accommodation. It seems to me a lot of this is political. Wheaton College is another one of those places where they were offering contraception until they discovered, to their horror that they had been offering it all along. And so I agree with you. I think it’s really unfortunate that the religious sincerity issue hasn’t been more fully briefed or there hasn’t been discovery on that issue because I think we would find that a lot of these claims are just kind of bs and that they’re really just challenging, whether its just because ‘we don’t like the black man in the White House, which is always sort of my go-to reaction, or if its just really this resurgence of misogyny and a harkening back to the days when contraception was outright illegal. It seems to me that we’re going backwards in time and its bizarre. And especially because Notre Dame did offer it, they were okay with it. They were for it before they were against it. And for them to now claim that this is some kind of core religious interest. And I’m reading their briefs and their briefs are just, you know its like I hear Sarah McLaughlin playing in the background it’s so fraught with emotion that it is just kind of hard to stomach when you know more of the political background.

GL: Yeah and I think that even if you take all these entities at their word, that they really had no idea that they were offering contraception coverage and that the contraception regulations caused them to take a closer look and they realized ‘oh my god we are covering this,’ it does illustrate how peripheral this issue is. If offering contraception is one of 4000 benefits in your insurance plan and really was this core religious intrusion, you would have paid closer attention to it. And I think it really goes to one of the legal arguments we are making here which is that ultimately the substantial burden that is being asserted is one that is triggered by independent decisions of your employees to make certain health care decisions that you don’t like, and that should not be the type of religious liberty claim the law recognizes precisely because of its impact on third parties.

JMP: You are fantastic at really helping parse through the issues in a way that is understandable for both lawyers and non-lawyers alike. So Greg I really, really appreciate your time.

GL: My pleasure.


JMP: This is Jessica Mason Pieklo, and I’m joined with Imani Gandy, Senior Legal Analyst at Rewire, and Elizabeth Sepper, Professor at Washington University School of Law in St. Louis, Missouri and the author of “Contraception and The Birth of Corporate Conscience”, a legal paper published in the American University Journal of Gender Social Policy and the Law.  Thank you, Professor Sepper, for joining us, Imani and I are very excited to talk to you about Hobby Lobby, corporate conscience, and the establishment clause, so welcome.

ES: Thank you, thanks for having me.

JMP: I want to give you a chance just to explain a little bit for our audience this developing theory of corporate consciousness that your paper lays out.  What exactly do you mean by this idea of a “corporate conscience”, and how do you see it playing out in these contraception challenges?

ES: We’re seeing, um, challenges to the contraceptive mandate to the requirement that large employers, if they offer insurance that they cover contraception as part of the insurance policies, we’re seeing those coming from for-profit corporations, and courts that have dealt with these issues, um, have to consider first whether as a matter of federal statute or federal law, or for the purpose of, of the Constitution, whether for-profit corporations have conscience, that is can they exercise religious belief, can they hold religious beliefs as corporations?  And we’re seeing a number of courts, now, decide that these artificial entities can, in fact, exercise religion just like individual human beings.  Or sometimes they decide that, well, the CEO, or the Director of the corporation has certain religious beliefs and transmits those to this, uh, artificial, for-profit secular company.

JMP: Where, exactly, did this idea come from?  Because this is not something that’s borne in corporate law, is it?

ES: It’s not obvious where it comes from, um, you know a lot of times we hear about, you know, what the founding fathers thought.  Well, the founding fathers didn’t have a lot of corporations, and it’s, there’s certainly no evidence that they would have thought that corporations could exercise religion the way that human beings do.  Um, and as a matter of corporate law, um, one thing is for sure, right?  We, we think of for-profit corporations as pursuing profit, that’s supposed to be their main goal, and they’re actually required to put that first.  Um, also in corporate law there’s the idea of separation between shareholders and the corporation itself.  What I mean by that is, for instance, if a corporation goes bankrupt, um, the creditors can’t come after the shareholders, we understand them to be two separate entities and that the shareholders just aren’t the same, um, as this, as the corporate entity.  Um, and here, instead, we’re seeing that courts say, “Well, the shareholders are the same”, they have these religious beliefs that their corporation does, or we’re seeing them say “Well, corporations must have religious beliefs, we should treat them like, like human beings.  Um, to some extent, uh, possibly, these notions are coming from the infamous Citizens United case, where the Supreme Court said that, uh, corporations, um, could exercise political speech on the same grounds as individuals.  But there was more precedent in the Citizens United area and the area of political speech, uh, than there is here, there’s really not precedent for this idea.

JMP:  What are some other implications, though, if the Supreme Court were to buy into this argument that, um, the, that at least in terms of religious belief, there is the ability to have transference, for lack of a better word, maybe.

ES:  There are some corporate law implications, right?  If you’re able to “pierce the corporate veil” as you called it, right, go after the shareholders or say the shareholders are the same as the corporation, it’s not clear why that shouldn’t be true in, say, the criminal context.  Usually we say the corporation is criminally liable, and maybe some of the, uh, employees involved in decisions can be criminally liable, we don’t go after the shareholders, and we don’t go after their resources.  But if we’re gonna “pierce the veil” as we call it in this way, it’s not clear why it shouldn’t go both ways. In terms of religious beliefs, now if we decide that for-profit corporations have religious beliefs it’s hard to know where religious challenges would end.  What is the limiting principle that would hold that back?  Some people say that these cases, because they’ve been brought by what are known as “closely held corporations”, so corporations with a limited number of shareholders that are not publicly traded, so they’re not out on the stock market – that’s a limiting principle.  But, actually, most of the corporations, most of the employers in the United States are closely held corporations.  So, if we said any closely held corporation can challenge regulations that protect employees due to religious beliefs, there could be, essentially, a deregulatory free-for-all.  It’s not clear that that’s a helpful limit on, on corporate conscience.

JMP: I do wanna shift gears just a little bit because as you know, you know, the First Amendment has two components – there’s the exercise component of it, but then there’s also the Establishment Clause, and Imani has a great piece up on the site, and most recently, even today on the New York Times Editorial Board noted that there’s this argument that’s sorta bubbling up, or, I guess, maybe that people are starting to pay more attention to, which is an Establishment Clause argument.  And I know you were a part of a group law professors who has briefed the Supreme Court on the issue of the Establishment Clause in the Hobby Lobby case, and I was wondering if you could talk about that a little bit?

ES: Sure, so the Establishment Clause is, is, as you say, the “other part” of the First Amendment, and essentially prohibits the government from establishing religion.  So together with a group of law professors joined in a brief to the Supreme Court that, in fact, one of the compelling government interests that the administration has here, is actually in complying with the Constitution.  But if we allow for-profit employers to exempt themselves employee protective legislation, we’re essentially allowing for the imposition of religious beliefs on the employees.  And that takes sides, it involves the Federal Government, the Federal Courts primarily, putting their thumb on the scale in favor of particular persons, so to speak, particular entities, religious beliefs.  And that’s problematic for the purpose of the Establishment Clause because, essentially, the Federal Government would be taking sides in matters of religious beliefs instead of allowing each person to make their own decisions about contraception, um, based on their religious beliefs.

IG:  Professor Sepper, I, I read the, uh, amicus brief with great interest, uh, simply because I became, uh, aware of this Establishment Clause argument probably about a year and a half after I first started to take great interest in these cases, and it seems to me that the Establishment Clause argument in sort of a winner here.  And so I’m wondering if you can talk about why it is you think that that argument hasn’t been made by either the government or some of the lawyers in these other cases, and whether or not you think that this is an argument that the Supreme Court we be able to ignore based on the fact that, perhaps, there aren’t any employees that have intervened, or based on the fact that there might be some sort of standing issue that is raised.

ES:  It’s sort of puzzling to me why the government didn’t bring this up earlier.  And in particular why the employees’ interest weren’t made, their interest in free exercise and their interest in anti-establishment, weren’t made more core.  I think part of the answer to that involves many district courts that considered this and sided with the challengers to the Contraceptive Mandate, very swiftly dismissed the idea that employees had any religious interest here or that did involve employers imposing their religious beliefs on employees.  And it’s not clear to me why they take that perspective.  Part of it may be the shift in the Federal Judiciary which has become very anti-employee as a matter of discrimination law, for instance.  So they may just be overlooking those interests.  I do think it is a strong argument in part because the Supreme Court’s precedent on Establishment Clause is sometimes quite varied, but one thing they have made clear in recent cases involving legislation very similar to the statute at issue here, is that it’s problematic for Federal legislation to allow employers or institutions to impose burden on employees or in the case of prisoners, so there’s another statute, on their religious beliefs.  And so we have to be careful in both enacting statutes and determining what judicial exemptions could exist, not to impose burdens on religious exercise by others.

IG:  And just to follow up on that question, I noticed the second section of your brief talks about the ways in which not violating the Establishment Clause is a compelling interest, and I have to admit, Jessica and I were discussing this immediately before the call, and I had at first I had read that section and I thought to myself, well you know the Establishment Clause is in the Constitutional hierarchy, or the Constitutional chain of command, automatically outweighs the Religious Freedom Restoration Act.  So I, at first, didn’t even understand the purpose of having that section in there, and then Jessica mentioned, and then I recalled when I spoke with you, um, several months ago for my piece about your article, your Law Review article, that you had said that a lot of courts don’t seem to view reproductive health care as health care, and don’t seem to view gender equality in health care services as a compelling interest, so, I just wanted to say I was fascinated with the way in which you said, well it seemed to be, correct me if I’m wrong, that you were saying even if you don’t think that preventative health care is a compelling interest, not violating the Constitution is.  So is that essentially why you included that argument towards the end of your brief, and can you talk about that a little bit?

ES:  Sure, so the Religious Freedom Restoration Act requires that the government has a compelling interest if it imposes a substantial burden on free exercise.  So the challengers here say the Contraceptive Mandate imposes a substantial burden on our religious exercise, and the government has no compelling interest in requiring employer-based plans to cover contraception.  So courts that have sided with the challengers have said, “Look – there is no compelling government interest”.  Almost all the courts have, have concluded that, a few haven’t.  But they say “Look, this isn’t really a public health issue, contraception isn’t a public health issue, and this isn’t really about equality.  So, there’s no compelling government interest.  What is clear is that compliance with the Constitution is, I would view it as beyond the compelling government interest, right?  It is a requirement on the government that they not violate the Constitution, and a statue like the Religious Freedom Restoration Act could never overcome that.  So I think, I mean, the court really should be grappling with that issue, and should realize that if they were to construe the statue in that way that they would have created a real Constitutional problem for the Federal Government.

JMP:  Well Professor Sepper I want to thank you for your time, this has been a fascinating conversation.  I hope that you can come and join us again after the Supreme Court has had arguments and we can do some debriefing and maybe some fun speculating on where we go from here.

ES:  Thank you very much, I’d love that.  And we’ll keep our fingers crossed.

JMP:  Yes, absolutely!  Thank you so much.

IG:  Thank you!

JP:  Thank you for listening to RJ Court Watch, a production of Rewire with your hosts, Senior Legal Analysts Imani Gandy and Jessica Mason Pieklo.  In upcoming episodes we’ll take a look at the undue burden standard, clinic violence and protect the zone efforts, and all the happenings at the Supreme Court.  Find additional coverage of these issues and more at www.rhrealitycheck.org.

Music provided by ATMOS 182, “Summer Sun”, Track 20, courtesy of Killer Tracks.

Special thanks to Kelly Pieklo for audio mix and edit services.