An argument that we hear quite often, when discussing the HHS mandate, is this: if we let the Catholics/Evangelicals refuse to follow the HHS mandate, what’s to stop the Jehovah’s Witnesses from refusing to pay for blood transfusions in employee health plans?
University of Richmond Law Professor Kevin Walsh has the answer in an interesting blog post. To summarize (but read the entire post–it’s very good):
(1) Has any Jehovah’s Witness employer ever made such a claim? I’m not aware of any. Yet all of the legal tools available to make such a claim have been available for years.
(2) RFRA prohibits the government from substantially burdening the exercise of religion. The religiously objecting employer under RFRA seeks protection from a government mandate. I’m not aware of any blood transfusion coverage mandate by the government–probably because there is no problem out there of employers limiting coverage in this particular way.
(3) The people putting this argument forward may not even understand what Jehovah’s Witnesses actually believe.
(4) RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test.
(5) The casual deployment of this Jehovah’s Witness example is sometimes coupled with related arguments that reveal a misunderstanding of the religious beliefs of other groups.
(6) A casual approach to religiously based moral beliefs that differ in some ways from majority-held moral beliefs can easily lead to harm through a failure to appreciate and offer reasonable accommodations.
(7) Most of the people who are advancing this particular slippery-slope argument probably have no idea of the contributions that Jehovah’s Witnesses have made to the law of religious liberty in the United States.