Standing for the Sanctity of Life

This past June smartphones across the country pinged with symphonic notification of the fall of Roe vs. Wade, the 1973 Supreme Court ruling that established a constitutional right to abortion. Within moments abortion was trending again as the defining political issue of the day. But for so many who believe in the sanctity of life from conception (Ps. 139:13–14) the fight for life had been the defining issue of a generation. The fight for life has been fought for almost half a century, most of it out of the spotlight, in a committed and arduous battle involving the sacrifice of time, resources, and long-term education, with the ultimate goal of defending the life of each person created in God’s image (a tragically untrendy mission in our dark age).

       Perhaps ironically, the fall of Roe vs. Wade may have been instigated by the legal procedures brought on by the passage of the Affordable Care Act (ACA) in 2010. Although the Act—familiarized as Obamacare—was heralded as an overdue healthcare reform for many disadvantaged citizens, its myriad provisions provided for and mandated employers financially support the elimination of the most helpless among us—unborn children—through use of abortifacient birth control. The burden of institutions to protect their conscience against this mandate served, in some ways, to accelerate the legal drama that reached its climax this past June, a story that the leadership of Westminster Theological Seminary was dutybound to play a part in.

Zubik v. Burwell

       Westminster’s involvement in the case began in the Fifth Circuit. Attorney Ken Wynne, on behalf of the seminary, intervened in a preexisting suit alongside East Texas Baptist University and Houston Baptist University. While each of the schools provided through their insured employee access to certain contraceptives, they did not include the full gamut of those mandated by ACA, specifically those contraceptives the schools considered to be abortifacients. This opened Westminster and her co-plaintiffs up to a collective $23 million in annual fines for non-compliance, a financial burden that almost certainly would have ruined them. Westminster’s board had decided prior to joining the suit that since neither the seminary’s independence nor the values outlined in the Statement of Principles could be jettisoned, the only option was to take legal action.[1]

       The District Court found for the plaintiffs, noting that the burden on religious free exercise was substantial and that the government could have achieved the sameends through less restrictive means. The government then appealed to the Fifth Circuit Court of Appeals, which reversed the trial court, finding that the appellees were incorrect in believing that the mandate forced them to affirmatively “facilitate[e] access to contraceptives.” In response, Westminster and her fellow plaintiffs petitioned the Supreme Court in Zubik v. Burwell (2016). Zubik was not about partisan spats over so-called socialized or universal healthcare as such. At stake were grander, more fundamental questions regarding the limits of state power, religious liberty, the Christian sexual ethic, and the place of the conscience in public life. Issues Westminster has been invested in from its beginning.

       Providentially, the Court issued a terse (and rare) per curiam opinion kicking the cases back to their respective lower courts. These courts were charged with adjudicating less restrictive means for providing contraception to employees without forcing the employers to affirmatively file a religious exemption claim form. Specifically, the solution proffered by the Supreme Court was that the petitioning organizations contract for plans that did not include contraception coverage while allowing employees to receive contraceptive coverage by other means.

Excursus on Legal Precedent

       To understand Zubik and its place in religious liberty jurisprudence, the story must begin with the late Justice Antonin Scalia’s controversial majority opinion in Employment Division v. Smith (1992). In Smith, the Court upheld Oregon’s denial of unemployment benefits to two Native American plaintiffs who had been fired for using peyote—a psychoactive hallucinogen banned by Oregon state law—in an indigenous religious ceremony. The law against peyote did not target any particular spiritual sect, the Court reasoned. Rather, it presented a “neutral law of general applicability.” No Oregonian was allowed to use peyote; therefore, the Smith plaintiffs were not being singled out for ill-treatment. In other words, where laws apply equally to religious and secular institutions (and citizens) alike, externalities affecting religious groups are presumptively acceptable. This standard has come to mean that state law that treats religious activity the same as “analogous non-religious conduct” passes muster.

       No animus toward any religion was discernable in Smith, and the state thus possessed a compelling interest in regulating illicit substances. Therefore, no individualized consideration for the plaintiffs according to their professedly religious use of the drug was warranted. Justice Scalia analogized to laws against polygamy, child labor, and paying taxes to argue that religious convictions cannot be employed to supplant legitimate state laws lest every citizen and “each conscience” would “become a law unto himself.”

       At present, Smith is still a valid precedent for Free Exercise cases, though Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and South Bay United Pentecostal Church v. Newsom (2021)—both COVID-19 era religious liberty cases—have cast doubt on the longevity of Smith. More forcefully, in Fulton v. City of Philadelphia (2021), the Catholic foster care case, which sidestepped Smith on narrow grounds, Justices Alito, Thomas, and Gorsuch all advocated departure from Smith and a return to an older standard, namely, where a law imposes a substantial burden on religious exercise, only the narrow tailoring of measures in service of a compelling government interest will survive the challenge.

       In any case, at the time of ACA’s passage, Smith was not quite as feeble as it appears today. Back then, so long as laws were facially neutral, non-targeted (i.e., generally applicable), and not discernably motivated by religious animus, and the adverse impact was merely “incidental, “they [were] presumptively legitimate under the First Amendment. While this has served as the precedent for nearly 30 years, political pushback ensued almost immediately after Smith was handed down.

       In response to the Smith holding, Congress, nearly unanimously, passed in 1993 the Religious Freedom Restoration Act (RFRA), a now unimaginable bipartisan law introduced by Chuck Schumer and signed into law by President Bill Clinton. Though ruled inapplicable to the states by the Supreme Court in City of Boerne v. Flores (1997), the law was upheld as applied to federal action in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006).

RFRA explicitly

Prohibits any agency, department, or official of the United States or any State (the government) from substantially burdening a person’s exercise of religion even if the burden results from a rule of general applicability, except that the government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

       In essence, RFRA revived the standard of strict scrutiny in Free Exercise cases as outlined in Sherbert v. Verner (1963), and Wisconsin v. Yoder (1972) over and against Smith—the standard Alito, Thomas, and Gorsuch want to revive—but only as a check on federal law.

       Jumping ahead twenty years, the battle between ACA regulations and RFRA kicked off with the landmark Supreme Court decision, Burwell v. Hobby Lobby (2014). Therein, by a 5-4 margin tracking along partisan lines, the Court held that private corporations were exempt from the contraceptive mandate because the government had not met its burden in showing that the mandate was the least restrictive means of ensuring employee access to contraception. This was the first time the Court had recognized such religious exemptions for private, for-profit companies—a recognition that the interests of business owners are not limited to profit— and it signaled assent to RFRA’s standard. A substantial burden had been placed on religious exercise in the name of government interest, but, in brief, Justice Alito and the majority found the government’s means of assertion of said interest heavy-handed.

       In November of the next year, the Court granted certiorari to the petitioners in Zubik v. Burwell, a consolidation of six lower court appeals, one of which Westminster joined along with Houston Baptist University and East Texas Baptist University. Oral arguments were held on March 23, 2016, only a little over a month after the death of Justice Scalia—Westminster had submitted its brief just a month prior to his passing. With the late Justice’s seat then unfilled, the risk of a divided court was significant.

Ecumenicism in the Name of Life

       In the popular media, the appeal filed by the Little Sisters of the Poor—who had initially been granted a temporary injunction just prior to ACA’s passage— became the face of the controversy. The sizeable coalition united alongside the Little Sisters under Zubik was truly ecumenical: Presbyterians, Baptists, and Catholics reasserted the contention initially raised by Hobby Lobby, namely, that whether or not the government had a compelling interest in providing access to contraceptives, a substantial burden had been placed on religious exercise and less restrictive alternatives existed to accomplish the government’s ends.

       Notoriously, Protestants and Catholics may disagree on the question of contraception use. The natural end of marriage being procreation, Catholics reason that any disruption of the natural result of marital sexual relations is a moral and even metaphysical corruption of marriage itself. Generally, Protestants demur on this point and insist that the end of marriage and the creation order are not at stake in every single sexual encounter within a marriage. Significantly, however, both parties traditionally denounce abortifacients of any kind, including so-called Plan B or “morning after” pills. That termination of pregnancies, at any stage, is immoral is not the source of contention for most conservative Christians of all denominational stripes.

       Embedded here are deep, perhaps unsolvable, theological questions and maybe equally irreconcilable differences between the two sides of the Tiber. But, thankfully, in the cases of Hobby Lobby, Zubik, and their progeny, neither Catholics nor Protestants required satisfaction on these underlying questions in order to band together on the central, animating question of the allegiance of conscience—whether God or state and to stand together in defense of God’s image in every human life, and at every stage.

[1] Unique to Zubik was the question of religious non-profits that were not classified as churches or church auxiliaries. For example, the Little Sisters of the Poor are a religious order that also performs a “secular” purpose insofar as they manage low-income housing for the elderly. This “secular” function, an act of charity, meant that they did not receive an automatic exemption from the contraception mandate afforded to churches at the outset by the ACA. Similarly, institutions of higher education, like Westminster, that cannot be designated an auxiliary to any church were not per se exempt.

Timon Cline is presently undertaking an M.Div at Westminster Theological Seminary.

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