Last Friday the Trump administration unveiled regulations that let a wider range of employers claim a religious exemption from the Obamacare mandate requiring health plans to cover birth control. Rep. Nita Lowey, D-N.Y., responded by invoking The Handmaid’s Tale, the Margaret Atwood novel, now a Hulu series, set in a patriarchal dystopia where the government controls women’s bodies and forbids them to read, write or work outside the home.
Lowey is not the only critic of the new regulations who conflates freedom from coercion with a right to forcibly extracted subsidies. Such overwrought reactions obscure the real issue raised by religious exceptions to the contraceptive mandate: When does respect for religious freedom require relieving some people of the obligation to obey rules that everyone else has to follow?
Never, according to the Supreme Court, which in 1990 ruled against Alfred Smith and Galen Black, who were denied unemployment benefits after being fired from their jobs as drug rehabilitation counselors because they used peyote in Native American Church ceremonies. Writing for the majority, Justice Antonin Scalia said letting the First Amendment’s guarantee of religious freedom trump a “neutral, generally applicable law” such as Oregon’s peyote ban would create “a system in which each conscience is a law unto itself.”
That decision rejected the approach that the Court had taken in earlier cases, which required the government to justify substantial burdens on religious freedom by showing that they were the least restrictive means of serving a compelling state interest. The peyote ruling provoked strong criticism from across the political…