Following up on yesterday’s post about for-profit companies claiming that they are entitled to religious exemptions from the contraception coverage requirement under the Affordable Care Act, another for-profit employer has filed yet another lawsuit. This time, it’s Tyndale House Publishers, represented by the Alliance Defending Freedom (formerly the Alliance Defense Fund).
ADF, like other conservative opponents of the contraception coverage, favor calling the HHS regulation “the abortion pill mandate,” based on the falsehood that ella and Plan B cause abortion. Ella and Plan B are emergency contraceptive drugs covered by the mandate and which are both classified as contraception, not abortifacients, by the Food and Drug Administration.
The first full sentence of Tyndale’s complaint [PDF]:
This action arises because the federal government has deemed devout publishers of the Bible to be insufficiently “religious” to enjoy religious freedom in America.
That’s not hyperbolic, is it? The lawsuit further alleges:
Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization. But Defendants’ recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization. The government’s mandate exempts what it calls “religious employers,” but denies that status to Tyndale House Publishers through its arbitrary definition.
The “arbitrary definition” to which the complaint refers is contained in the HHS definition of “religious organization,” which covers only nonprofit religious organizations. Tyndale and other for-profit challengers of the HHS regulation are, in essence, claiming that limiting the exemption to nonprofit organizations violates the religious freedom of for-profit corporations. But there’s no precedent in federal law for granting for-profit companies religious exemptions; religious nonprofits are exempt from employment discrimination laws (i.e., they are permitted to hire only people from their own faith without running afoul of proscriptions on discrimination based on religion). Even Melissa Rogers, the religious freedom expert who urged the Obama administration to extend the exemption from just houses of worship to other religious nonprofits, said at a recent Georgetown University Law Center symposium that she was “not as sympathetic” to the claims of for-profit employers in this context. Georgetown law professor Marty Lederman, who convened the September 21 “Contraception and Conscience: A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees,” described these for-profit plaintiffs as “the least sympathetic” as well. (See video of the symposium here.)
Note, also, the evolution of the claims of the contraception coverage opponents. First, Catholic nonprofits claimed they did not want to cooperate with providing coverage for contraception. That point—whether the insurance coverage amounts to “cooperation with evil,” whether direct, proximate, or remote—is a matter of debate among Catholic scholars. Then, evangelical nonprofits added another element to the mix: claiming that forcing them to cover ella and Plan B was just as bad as forcing Catholics to cover other contraception.
Whether any of this constitutes a burden on their religious exercise, either under the Religious Freedom Restoration Act or the Free Exercise Clause, is not at all clear. Even less clear is whether for-profit companies have a claim on these points at all; as I noted yesterday, the Missouri court deciding the O’Brien case did not reach the question of whether, under Citizens United, a for-profit company is like a person with free speech rights, and by extension, an entity with a claim under RFRA that its religious exercise is substantially burdened by government action.
Notwithstanding the FDA classification of ella and Plan B (which reflects the consensus in the medical community that these drugs prevent fertilization, not implantation), Tyndale insists that by forcing it to cover these drugs, the government is forcing it to contravene what Tyndale claims to know is true from the Bible:
Among the biblical principles the company is committed to following is respect for the inviolable sanctity of the life of every human being as created in the image and likeness of God from the moment of conception/fertilization (cf. Jeremiah 1:5; Genesis 1:26).
Think about that for a minute: Tyndale is alleging that because it believes that Jeremiah 1:15 and Genesis 1:26 state that life begins “from the moment of conception/fertilization,” that by requiring it to cover ella and Plan B, which by its own admission “can” (i.e., just might) “cause the demise of an already conceived/fertilized human embryo,” the government is violating Tyndale’s right to freely practice its religion. Think about the precedent Tyndale is asking the court to set: that any for-profit company in America could point to the Bible (or, for that matter, the Qu’ran) and say, “look, it says I must not do X. Government regulation A (which is generally applicable to everyone and based on public health/science/or other policy analysis) requires me to do X. Exempt me.”
Does our government, or the First Amendment, work that way, and will the courts agree? Tyndale’s claims, if adopted by the courts, could force courts to debate, for example, what the Bible says—and not just what sorts of employers are entitled to what sorts of exemptions. Imagine the courtroom arguments over what the prophet Jeremiah really meant, and, one might extrapolate, investigations into whether employers really do follow these proscriptions in every instance, in order to prove or disprove the authenticity of their claims.
It seems like ADF and its clients haven’t thought through these implications. They think there’s only one interpretation of the Bible—theirs. Which, when you think about it, is a strange interpretation of religious freedom, isn’t it? But when you hear conservatives say they think our government should be run according to “biblical values,” this is exactly what they’re talking about.