Under the 1993 Religious Freedom Restoration Act, any government action that substantially burdens religious practices will be subject to strict judicial scrutiny to determine if it, rather than some less intrusive measure, is necessary to achieve a compelling government interest. The Affordable Care Act, as supplemented by regulations requires for-profit employers to provide health care coverage that includes all 20 FDA-approved birth-control methods.
These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly incompatible birth-control mandate? Congress didn’t.
In the ACA, Congress simply required health plans to provide “preventive care” for women. An executive branch agency decided this meant the full menu of 20 technologies. So, during oral argument in March, Justice Anthony Kennedy asked: “What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”
The answer is: The constitutional structure we have is the kind progressives prefer, wherein more and more decisions are made by unelected and unaccountable executive branch “experts” exercising vast discretion. In this instance, the experts were, to say no more, willing to provoke a predictable controversy that would be convenient for the Democratic Party’s “war on women” trope. Today, this war consists of subsidizing only 16 of 20 birth-control methods. The court has held that some “closely held” businesses — often family owned and adhering to religious practices — have a right under RFRA to wage this war.
The court’s other end-of-term case arose from overreaching by government employees unions and their Democratic allies. At issue were the First Amendment rights of people herded into unions after being made into government employees by government’s semantic fiat.
In the 1950s, about 35 percent of the private-sector workforce was unionized; today just 6.7 percent is. The labor movement and the Democratic Party’s funding depend on government employees, 35.3 percent of whom are unionized. So, in Illinois, two Democratic governors manufactured government employees out of home health care workers, a growing cohort — and a tempting target for dues-hungry unions — in a nation with an aging population and many infirm elderly.
In 2003, an executive order from Democratic Gov. Rod Blagojevich, of fragrant memory, decreed that thousands of home health care workers are government employees, and resulted in the Service Employees International Union being recognized as their representative. In 2009, an executive order from the current Democratic governor, Pat Quinn, designated even more home care providers, who essentially are independent contractors, as government employees. The tenuous theory was that they are government workers because their pay comes indirectly from government — from the Medicaid funds received by the persons who hire them.
Under a 1977 Supreme Court decision, which 26 states take advantage of, government employees can be forced to pay certain fees to unions even if the employees do not wish to be in the union and disagree with its positions. In last week’s case, the court carved out an exemption for people such as the home care providers who are not “full-fledged” government employees.
This certainly seems sensible as applied to the lead plaintiff, a woman caring for her severely disabled son. Because the court has now recognized her First Amendment freedom of association — which includes the freedom not to associate — and freedom from compelled speech, she no longer will be required to pay fees to a union she refuses to join. SEIU will have to look elsewhere for the approximately $10 million in fees it has siphoned annually from people like her. This is real campaign finance reform.
Today’s court — nine fine minds producing written explanations of their reasoning about important principles — has its own discord. It is, nevertheless, a lagoon of logic in the forest primeval of today’s overheated politics and overbearing government. Twice last week the court played its indispensable role as constable, policing portions of this forest where progressivism has produced government guilty of gratuitous bullying.
George Will is a columnist for The Washington Post.