In yesterday’s opinion in EWTN v. Burwell, the 11th Circuit Court of Appeals caused double the damage by rejecting a clear religious liberty claim and trying to save the HHS contraception mandate at the same time. This is not the court’s job. It was supposed to objectively analyze a Religious Freedom Restoration Act (RFRA) claim, which it not only rejected in an attempt to set religious liberty back in time, but then jumped through hoops to justify the government’s contraception and abortion-related services scheme which wasn’t even passed by Congress and instead was imposed by executive fiat.
In its opinion, the 11th Circuit recognized:
“We accept that the plaintiffs truly believe that triggering contraceptive coverage or being complicit in a system providing contraceptive coverage violates their religious beliefs.”
However, the court then amazingly concluded:
“But our objective inquiry leads us to conclude that the government has not put plaintiffs to the choice of violating their religious beliefs or facing a significant penalty. We hold there is no substantial burden.”
The court now looks foolish. It already admitted religious liberty was violated in this case, and is now left trying to claim there is no “significant penalty” when the government threatens religious actors with thousands of dollars in fines if they don’t violate their consciences.
The court continues:
“The ACA and the HRSA guidelines—not the opt out—are . . . the “linchpins” of the contraceptive mandate because they entitle women who are plan participants and beneficiaries covered by group health insurance plans to contraceptive coverage without cost sharing. In other words, women are entitled to contraceptive coverage regardless of their employers’ action (or lack of action) with respect to seeking an accommodation.”
If this is so true, why the need to involve EWTN in this scheme? Why not just provide the coverage directly? The government seems to need (or want) EWTN and others to be involved themselves.
In sum, the court acknowledged that the HHS contraception mandate “accommodation” forces EWTN to violate its religious beliefs or pay government penalties, but still found no substantial burden on religious freedom. This is nonsense. Surrendering your religious beliefs in order to avoid government penalties is the definition of “substantial burden” if there ever was one. Hopefully the Supreme Court will get these cases right when it considers them in the next few months, and settle once and for all that the government is substantially burdening religious exercise by threatening thousands of dollars in fines against religious actors if they don’t violate their consciences, and has no need to even involve them at all in providing drugs and services they believe cause abortions, but can leave religious groups out of the process entirely as it already does for other types of organizations.