The Missing Voices in the Contraception Mandate Cases

By analogy to the Little Sisters claim, however, truly devout conscientious objectors wouldn't be required to perform any service—since, of course, any service would contribute to the country that's at war.  In fact, they would refuse to request an exemption; even filling out the form would make them complicit.

The assumption seems to be that religion releases you from any obligation of any kind to the state. And that’s apparently even true if you are a giant for-profit corporation. 

I do not question that the nuns, and the Green family, are sincere. But why are they the only ones whose interest matter? These cases involve the government and the employees covered by the Act. Their interests should count, too.

In the case of the Little Sisters, government has a clear interest in keeping track of which organizations claim exemptions and making sure those claims are genuine. What judge, until recently, would have thought that interest illegitimate?

In Hobby Lobby in particular, the government has a powerful interest in making sure that its comprehensive insurance scheme provides uniform opportunities to all employees in commerce. That interest can sometimes overcome even the most sincere religious objection. In 1964, many people had sincere religious beliefs that African Americans and whites should not mix in restaurants, stores, and hotels—that this violated the words of Acts 17:26 that God had fixed boundaries for the nations of man and expected them to remain within them.  (There are sincere believers of this idea even today within the so-called “British Israel” and “Christian Identity” sects.)

The Civil Rights Act did not demand that these people change their beliefs. It did not demand that they desegregate their churches, or open their homes. But it did embody a judgment by society that, in order to engage in business, they had open their businesses to all. 

The same kind of governmental interest is present in the contraceptive-mandate cases: If you want to engage in interstate commerce, cover your employees. The peoples’ representatives have determined that both public health and the economy will function better if you do.

And that brings in the employees’ interests: first, in making their own health choices from a full range of options; second, in earning full benefits for their work, whether they are men or women; and finally—this one seems to be mentioned by almost no one—in their own religious liberty. For most of us, choices about contraception arise from our own consciences. In a free country, the boss doesn’t collect the employees’ beliefs at the workplace door.

The Tenth Circuit opinion upholding Hobby Lobby’s supposed right to an exemption is a remarkable document. It does not say that the Greens’ beliefs outweigh those of government and employees. It simply pretends that only the Greens have any interests at all. As Chief Judge Mary Briscoe points out in her dissent, the Tenth Circuit’s opinion “does not mention the public interest that the government had relied on at the preliminary-injunction hearing: the health reasons for promoting employee access to emergency contraceptives.” (Briscoe is the only woman on the Court. The plurality of male judges did not balance women’s health away—they just forgot it was an issue.)

How can it be that in a case concerning health-care, health interests somehow don’t matter? Whether among married or unmarried women, planned pregnancies produce better outcomes, both for mother and child and for the families involved. In other words, mothers raising children are healthier if they can space their pregnancies—and are less likely to have premature or low-birth-weight babies. Some women have chronic medical conditions and should never become pregnant; others need to manage their own health in order to prepare for pregnancy. And some contraceptive methods have important health benefits that don’t relate to contraception at all. 

To effectively make their health choices, women need not only “some” contraception, or only those methods that lay employers approve; they need access to the full spectrum of medically safe methods. The public’s interest in their freedom to make those choices is huge. “There's a reason why the Centers for Disease Control and Prevention listed family planning as one of the 10 great public health achievements of the 20th century,” Adam Sonfield, a senior public policy associate at the Guttmacher Institute, said in an interview.

And beyond the health question, for heaven’s sake, think for a moment about “liberty”: A country where employees have both jobs and religious freedom will be freer than one where they must choose between the two. 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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