Ohio Attorney General Mike DeWine has joined with some other Republican Attorneys General to urge an exception to the requirement in Obamacare that business provide contraceptive coverage for employees.

The most notable thing about DeWine’s letter is that it does NOT suggest that the Obamacare provisions that require contraception coverage are unconstitutional.   This is because the Supreme Court has held that although the government have the ability to accommodate otherwise illegal acts done in pursuit of religious beliefs, it is not required to do so.  The case is Employment Division v. Smith.  You probably heard about it in civics class:  the court held that the government was not required to make exceptions in the law for the religious use of peyote.

After Smith, Congress passed the Religious Freedom Restoration Act.  Under RFRA, the federal government may only burden a person’s right to free exercise of their religion if the regulation promotes a compelling governmental interest and is the least restrictive means of promoting that interest.  The proposed HHS regulations on contraception coverage does this already by permitting religious institutions to opt-out of this portion of the regulations by providing contraceptive coverage through alternate means.

The letter supports the idea that for-profit businesses should be able to take advantage of this situation.  This is not what RFRA was intended for.  The case cited by DeWine and the other Attorneys General notes that the rule requires a court to scrutinize the asserted harm of granting specific exemptions to particular religious claimants. The Court cited as an example a case where a person could claim a religious exemption from a state law denying unemployment benefits to those who would not work on Saturdays, but noted that the rule did not apply to “all persons whose religious convictions are the cause of their unemployment.”

Even if the inclusion of contraceptive coverage within a health plan burdens a religious belief, the government can do so under RFRA.  This is because the lack of available birth control imposes considerable costs and other burdens on the Government and health care system, not to mention the obstacles many women currently face in obtaining affordable family planning services.

At least two courts have found against the theory espoused by DeWine and the other attorneys general.  In one case, Conestoga Wood Specialities Corp. v. Sebelius, 2013 U.S. Dist. LEXIS 4449, 9-10 (E.D. Pa. Jan. 11, 2013), a closely-held, for-profit Pennsylvania corporation that manufactures wood cabinets and wood specialty products claimed that the owners were practicing Mennonite Christians whose faith requires them to operate Conestoga in accordance with their religious beliefs and moral principles. Providing contraceptive coverage to employees, they argued, would violate their religious beliefs because such coverage may include abortficants.  The court rejected the idea that the regulations burdened the religious beliefs of the owners of the corporation:

A series of events must first occur before the actual use of an abortifacient would come into play. These events include: the payment for insurance to a group health insurance plan that will cover contraceptive services (and a wide range of other health care services); the abortifacients must be made available to Conestoga employees through a pharmacy or other healthcare facility; and a decision must be made by a Conestoga employee and her doctor,  who may or may not choose to avail themselves to these services.

A federal appeals court in another case made a similar point that the owners are burdened by contributing to a group health plan that, might, after a series of independent decisions by health care providers and patients covered by the plan, subsidize someone else’s participation in an activity that is condemned by their religion. Hobby Lobby Stores, Inc. v. Sebelius, 2012 U.S. App. LEXIS 26741, 9-10 (10th Cir. Dec. 20, 2012).  The court noted that RFRA was intended to protect a person’s participation in (or abstention from) a specific practice required (or condemned) by his religion; it was not intended to encompass commercial relationships.

This is the key difference.  Businesses exist to make a profit; they do not exist to spread or promote religious ideals.

It’s not just that DeWine is not accurately stating the law.  The idea in the Attorneys General letter is not well thought out and dangerous.  Seeking to extend the “right” of for-profit organizations to opt-out of general laws on religious grounds is a slippery slope.  Courts have long recognized that businesses cannot, for example, opt-out of civil rights laws just because the owner of the business has a contrary religious belief.  (i.e. a restaurant can’t refuse to serve black people because the owner has a religious objection).  Yet DeWine would seem to allow almost anyone to not follow a law so long as they assert a “religious belief.”