What Happens When One Religion is More Equal than Another
By: Anna Lynch
Tags: Supreme Court, Religion, Womens Health, Women, Religious Freedom

What Happens When One Religion is More Equal than Another

Or what Amy Coney Barrett’s appointment means for women’s health

Photo by Shalone Cason on Unsplash

What does religious oppression look like in the United States today? Andrea Anderson of Minnesota could tell you a story about that. She had to drive to many different pharmacies after being denied the morning after pill at her local pharmacy. The pharmacist claimed that he was “not comfortable” with filling her prescription. He called another pharmacy to see if they had it, but that pharmacist also refused to fill the prescription but told him that it was available at a third pharmacy. He did not share that information with Ms. Anderson. In desperation, Ms. Anderson called the third pharmacy and was able to obtain the pill by driving 50 miles each way in a snow storm. Why should the pharmacist’s religious beliefs supersede her perfectly legal healthcare choices? If he cannot serve everyone within our society regardless of his moral and religious beliefs, then he should not be in a role where he needs to do so. There are varying laws depending on the state in which you reside around these religious exemptions, but even if the law is on your side as a patient, there is no guarantee that you will get the care you need. And because many of the exemptions are around birth control issues, time is of the essence.

In Seattle, several women have had life-threatening pregnancies that Catholic hospitals would not end even knowing that the woman would likely die. And in many communities, due to secular and Catholic hospital mergers, the Catholic hospital is the only hospital available to women.

The vast majority of Americans who serve the public are willing to allow for and understand the importance of religious freedom for everyone. It is only a small group of people who are working to move the country to adapt their religious beliefs as the norm for everyone. The current Supreme Court, with the addition of Justice Barrett, appears to be on course for adding more religious freedom for those who oppose women’s right to a full spectrum of healthcare.

What exactly does religious freedom mean? It’s complicated. Over the course of the history of the United States, the interpretation of the First Amendment has changed several times in weighing the interests of the individual against the interests of the society which the law protects. Early interpretation of the concept of religious freedom indicated that the Supreme Court differentiated between religious belief vs. religious action. In Reynolds v. United States (1878), regarding the Mormon practice of polygamy, the interpretation leaned on religious beliefs and opinions having protection but not actions.

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”

The Court went on to say that allowing each person to break laws based on religious practice would undermine the government’s ability to make laws.

Doing so “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

But in 1972 in Wisconsin v. Yoder, where the case involved Amish families who did not want to comply with having their children attend high school until the age of 16, the Court agreed with the Amish families. It held that there must be a “compelling interest” for the government to deny a religious exemption. While the Court enforced this doctrine unevenly, it was the basis for many exemptions. In 1982, in United States v. Lee, the Court ruled against an Amish employer who objected on religious grounds to paying into the Social Security system.

They wrote, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

Then in 1990, in the Employment Division v. Smith, a case where two workers were suing the state for unemployment compensation since they were fired for ingesting peyote as part of a religious ceremony, the Court denied their claim and stated that any religious exemptions must come from a “political process” such as the state passing a law giving the religious exemption as other states had done. This was a controversial decision, so Congress took the Court at their word and passed the Religious Freedom Restoration Act (RFRA) in 1993. RFRA only applies to federal issues, although many states have passed their own versions of RFRA laws.

According to the National Constitution Center, RFRA “authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions unless the government can show that the law is the “least restrictive means” of furthering a “compelling governmental interest.” And that brings us to the present.

Recent Supreme Court decisions have upheld RFRA and used it in many controversial decisions. For example, in the 2014 Burwell v. Hobby Lobby case, the Court found in favor of the family-owned business that did not want to provide contraceptive coverage in spite of the Affordable Care Act mandate. In the more recent Little Sisters of the Poor v. Pennsylvania case, the Supreme Court ruled that the Little Sisters had a religious right to not provide contraceptives to their employees. The Little Sister came back to the Court arguing that even though they were not the ones paying for the insurance coverage, they felt complicit in providing the coverage. It seems that the “least restrictive means” compromise of having others pay for the contraceptive coverage was not good enough for the Court.

As Justice Barrett takes her seat on the Court, we can be assured that the decisions coming out of the Court will likely lean right, especially when it comes to cases involving religious freedom. In fact, according to an analysis by Lee Epstein, law professor at Washington University in St. Louis, and Eric Posner, law professor at the University of Chicago, the Supreme Court has moved from siding with religious freedom cases in about 50% of cases from 1953–2005 to over 80% from 2005 when Justice Roberts became Chief Justice.

Justice Barrett’s appointment is likely to keep this trend going to the detriment of women’s healthcare and other issues like LGBTQ rights. The religious right has figured out how to use the courts to impose their Evangelical beliefs on all Americans, especially women.

In America, we are free to practice our religion as we see fit. If you don’t like contraception, don’t use it. But one cannot use religious beliefs to control others’ lives. The Founding Fathers were specific in their intent that no religious group’s belief should be able to usurp the greater good of the community. James Madison recognized that difficulties this would present and wrote in a letter to Jasper Adams,

“I must admit, moreover, that it may not be easy, in every possible case, to trace the line of separation, between the rights of Religion and the Civil authority, with such distinctness, as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, and protecting each sect against trespasses on its legal rights by others.”

They wanted everyone to live in a society where each person can live out their faith without worry that the government would tell them what to do. There has to be room within a multi-religious society for religious or non-religious beliefs to bump up against one another and give room for those differences. Otherwise, we get into a situation where one religion is more equal than others. I submit that in the Hobby Lobby and Little Sisters of the Poor cases, Catholic and Evangelical beliefs are being imposed on women who just want to work and have health insurance that covers all their needs. When it comes to the “compelling interest” argument, I find it hard to understand how the Court does not see a woman’s ability to access healthcare as just that, compelling. Contraception is part of a woman’s right to make her own decisions concerning her personal health. Certainly, access to hormones for contraception and the myriad other uses for those hormones is a compelling interest for all women!