Column: Court says Obamacare birth control option may violate Catholics’ rights, even if they don’t use it

The Affordable Care Act continues to provide an opportunity for religious zealots to complain that someone, somewhere, might be doing something of which they disapprove. Another such case advancing through the courts is that of Missouri State Rep. Paul Wieland and his wife, Teresa, who assert that Obamacare’s contraceptive mandate tramples on their family’s religious rights even if they don’t make use of it.

St. Louis Federal Judge Jean Constance Hamilton thinks they may have a point. On Thursday she denied the government’s motion to throw out the case on summary judgment. Merely requiring individuals to buy an insurance policy that provides contraception could infringe on their religious conscience, she ruled in clearing the case for trial.

This is yet another expansion of the murky standard the Supreme Court set in its 2014 Hobby Lobby ruling, which established the principle that corporations can feel that their religious scruples are infringed even if they’re not religious entities. Justice Ruth Bader Ginsburg, writing in dissent, called the decision one of “startling breadth.” She warned that the court had “ventured into a minefield” by opening the door for religious exemptions from general public laws to be claimed by almost any entity on any grounds.

The majority’s reasoning in Hobby Lobby, observes University of Michigan law professor Nicholas Bagley by email, means that “all sorts of religious beliefs should be accommodated, even if the accommodation is a pain and even if there are questions about the sincerity of the religious belief in question.”

Are there any limits to an assertion of religious privilege, then? The Wielands assert that the Affordable Care Act mandate that all insurance policies provide contraceptive products and services without cost-sharing — that is, without co-pays or deductibles) — burdens their religious belief, even though they assure the court that they would never consider taking advantage of the provision. (Their three daughters were 12, 18, and 19 when the case was filed in 2013.) They demand access to a policy that doesn’t offer contraception under any circumstances, like they used to have via Paul’s service in the Missouri state legislature, before Obamacare rendered such policies unlawful.

Obamacare forces the Wielands into “a cruel choice,” they contend: Paul can give up his seat in the Legislature and find another job, or look for a health plan without contraceptive coverage even though there aren’t any, or give up coverage for his daughters and face fines. He also says, by the by, that he doesn’t consider contraception to be “medicine, health care, or a means of providing for the well being of persons.”

The Wieland case underscores the breadth of Hobby Lobby that Ginsburg mentioned. The courts traditionally are loath to question assertions of religious privilege, and Judge Hamilton steers well clear of doing so here. “The sincerity of [the Wielands’] religious beliefs has not been disputed,” she writes, and it’s not for the court to say they are “mistaken or insubstantial.”

She buys the family’s argument that the government, by saying that if the Wielands don’t believe in contraception they can simply avoid using it, is effectively “an argument that Plaintiffs’ religious beliefs are unreasonable.” And she rejects the government’s argument that the law doesn’t require the Wielands to “modify any behavior at all.” She says it’s enough that their health plan includes contraceptive coverage, as though they’re justified in feeling tormented by the mere fact that the provision is there, lurking.

The real question posed by the lawsuit is what “conduct” means. The government is correct in stating that Obamacare doesn’t force the Wielands into any particular course of conduct. Health insurance by its nature is a smorgasbord. Certain procedures and services are covered, if the insured person chooses to access them. None is mandated for use or outside the insured’s volition, except perhaps emergency treatment to someone in a coma or vaccination requirements for children, which hardly applies to contraception.

The only “conduct” the Wielands might undertake in violation of their religious beliefs would be to acquire birth control. They say they won’t do that and no one is forcing them to, so how exactly are their beliefs infringed? They don’t assert that they pay more for coverage including contraception than they would for a no-contraception policy. (That might indeed amount to “conduct.”) Rather, their insistence on a personalized policy could conceivably drive up costs for everyone in the pool, since it would take administrative effort by the insurers, which presumably they would pass on to all customers.

Reading the Wielands’ legal papers, it’s hard to avoid feeling that this is more about family control than strictly about religious belief. The papers read as if they don’t trust their daughters to do the right thing by steering clear of the temptation of birth control, unless they can be absolutely sequestered from contact with even the barest hint of free contraception, much less the opportunity to acquire it on their own.

They’re afraid that the mandate effectively provides their daughters, two of whom are not minors, with “the equivalent of coupons to redeem for free contraceptives … at the corner drug store.” They depict a world in which their efforts “to nurture, educate, and raise” their daughters “according to Catholic principles” can be threatened by “the provision of information or guidance to their daughters about locations at which they can access contraceptives, sterilization or abortifacients, or related education and counseling.”

Their proposed personal solution might complicate the provision of healthcare to strangers. Is this case really about a burden on their own religious beliefs or an attempt to impose their beliefs on others?

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