Last week, the Texas Tribune reported that 156 federally-funded family planning programs in Texas must now require parental consent in order to provide teen patients with contraceptive services. Why? Because one Texas parent wants to raise his daughters “in accordance with Christian teaching on matters of sexuality,” something he claims is not possible so long as anyone under the age of 18 has access to contraception.
How can a single faith practitioner’s right to “religious liberty” allow them to stymie an entire government program that provides healthcare to millions? This alarming prospect is now at issue, not just in the family planning case mentioned above, but in multiple lawsuits in which plaintiffs argue that the mere existence of government programs they oppose wrongfully burdens their religious exercise.
In most religious liberty lawsuits, it’s extremely clear when the government is placing a “substantial burden” (the legal term of art in these cases) on religious activity. Policies that bar a Sikh soldier from wearing a turban, require a Seventh Day Adventist government employee to work on Saturdays, or deny a Jewish or Muslim person access to kosher or halal food in prison have been extensively litigated. If and when such plaintiffs win their claim, they gain a right to personal accommodations that allow them to practice their faith—for example, an individual right to wear a turban or receive kosher food.
Seizing the opportunity to vastly expand religious rights in an era when the courts are increasingly sympathetic toward claims brought by conservative Christians, we’re now seeing plaintiffs argue that the existence of a government social or health program that benefits the public at large violates their religious exercise. Rather than requesting personal religious exemptions from government policies, they are demanding that entire government systems be altered or shut down to accommodate their religious beliefs.
In 2020, Texas father Alexander Deanda—represented by Jonathan F. Mitchell, the architect of Texas’s S.B. 8 abortion ban—filed a lawsuit in an attempt to obstruct Title X, the federal government’s long standing family planning program. Title X is a federal grant program created in 1970 by President Nixon to provide contraceptive and related healthcare to low-income and uninsured patients. Federal regulations state that while grant recipients should “encourage family participation” when treating teen patients, they are prohibited from requiring parental consent.
In his complaint, Deanda argued that the “administration of the Title X program substantially burdens the exercise of religion by subverting the ability of parents to raise their children in accordance with Christian beliefs on matters of sexuality, which require unmarried children to practice abstinence and refrain from sexual intercourse until marriage.”
While Deanda’s children never sought contraception from a Title X grant recipient he nevertheless claimed that the program’s operation burdens his religious rights, and removes the “assurance that his children will be unable to access prescription contraception or other family planning services that facilitate sexual promiscuity and pre-marital sex.”
What was his proposed solution to this supposed burden? Deanda requested that the federal court prevent the government from funding any project that “fails to obtain parental consent” before distributing family planning services to minors. In other words, an individual parent is demanding a religious right to upend teens’ ability to access contraception nationwide.
A few weeks ago, Deanda won his case before an arch-conservative District Court judge, Matthew Kacsmaryk, who previously worked at the Christian Right law firm First Liberty Institute—though Kacsmaryk didn’t rely on religious liberty arguments in his decision. While an appeal is likely, at least for now teens in Texas no longer have access to contraception at Title X clinics without parental approval.
Nor is this case the only example of such far-reaching religious liberty claims. In December, a nurse at a Veterans Association hospital in Texas, represented by First Liberty Institute, filed a legal complaint alleging that it violated her religious beliefs to “work in a facility that performs abortion services for reasons other than to save the life of the” patient. The case, Carter v. McDonough, challenges a recent policy requiring VA hospitals to offer abortion care under modestly broader circumstances: “when the life or health of the pregnant Veteran would be endangered if the pregnancy were carried to term, or when the pregnancy is the result of rape or incest.”
The nurse isn’t merely requesting that she be permitted to opt out of abortion care, which would make the complaint utterly unremarkable. Rather, she demands that the new rule allowing patients to access some forms of abortion care in VA hospitals not be applied at the entire facility where she works (never mind the beliefs of her coworkers, who may feel religiously motivated to provide abortion care, or of the patients themselves).
If the case is successful, there’s no question that conservative law firms will attempt to replicate the suit in VA hospitals nationwide. If a single religious adherent is able to cut off access to reproductive healthcare for thousands or millions of people, what comes next? A claim that the ability of women to access contraception under Title X without their husband’s permission violates the husband’s religious liberty? A complaint by a public-school teacher arguing that it violates their religious beliefs to work at a school that teaches evolution, sex-ed, or multiculturalism—or to work alongside LGBTQ teachers? A claim that the ability of minors to access certain books in a public library violates parents’ religious liberty? A lawsuit alleging that the existence of the federal Supplemental Nutrition Assistance Program (SNAP) interferes with a church’s religious requirement to serve the poor and save souls? These examples may sound farcical—but this is the direction that law is now being pushed.
Of course, not all faith groups are likely to benefit from an expanding definition of what constitutes a “substantial burden” on religious exercise. For example, in case after case over decades, courts have held that the destruction of sacred Native American religious sites by the government does not constitute a “substantial burden” on tribal members’ religion. In the most infamous case, Lyng v. Northwest Indian Cemetery in 1988, the Supreme Court explained that the destruction of a sacred site did not meet the legal definition of a substantial burden because it wouldn’t coerce the tribes “into violating their religious beliefs; nor would [it] penalize religious activity.”
Even as religious rights have vastly grown for conservative Christians over the past decade, this analysis has been cited as recently as 2022 to deny protection to Native American sacred sites. Other cases from the past year found no substantial burden where Muslims were subject to targeted questioning by immigration officials, leading them to modify their religious practices. None of these cases, had they won, would have posed the threat to public benefits present in Deanda v. Becerra or Carter v. McDonough.
There are serious concerns with expanding the legal definition of what constitutes a “substantial burden” on religious exercise. Not only could an overly-expansive definition allow individual religious practitioners to transform entire government programs or institutions, but it also stands to quash the rights of many other religious practitioners—such as the medical providers who believe it’s immoral to turn away patients in need of reproductive healthcare, or the patients who view their own reproductive decision-making as a religious right.
The absolute worst-case scenario, however, is the path we appear to be on now—where conservative Christians are able (even temporarily) to shut down government programs they oppose, while religious minorities are left unprotected from even grievous threats to their religious practice. This development threatens to turn the entire structure of religious exemptions on its head: morphing from an individual right to opt-out of laws that apply to the general public, to an ability to transform public programs to conform to one’s personal religious beliefs.