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Supreme Court Used Indian Law to Prevent Birth Control for Women

Rob Capriccioso

In wake of the 5 – 4 decision by the Supreme Court in Burwell v. Hobby Lobby issued June 30, political commentary on religious freedom, abortion rights, and the war on women has been endless.

Less talked about in the mainstream has been that the court used an Indian-centric law, the Religious Freedom Restoration Act (RFRA) of 1993, to help it come to its opinion, which said that some family-owned and other closely held businesses, like the Hobby Lobby craft store, are allowed to opt out of the federal Obamacare mandate requiring such companies to pay for contraceptives in health coverage for their workers.

As the conservative justices wrote for the majority, the RFRA was enacted by Congress in 1993 in response to a 1990 high court decision, Dept. of Human Resources of Ore. v. Smith, which found that a state could deny unemployment benefits to a person fired for using peyote, even if the drug was used as part of a religious ritual.

The Smith case came to fore after two members of the Native American Church were fired for ingesting peyote for sacramental purposes and then were later denied unemployment benefits by the state of Oregon because consuming peyote was against the law there.

Enter Congress and its RFRA, aimed at preventing such religious-based discrimination. It passed with almost unanimous support in both the House and Senate, and President Bill Clinton signed it into law in 1993.

One year later, the House Subcommittee on Native American Affairs and the Senate Committee on Indian Affairs further dealt with the narrow issue of Smith on the specific issue of the sacramental use of peyote.

“We amended the American Indian Religious Freedom Act [AIRFA] in 1994 to allow for the sacramental use of peyote,” says Tadd Johnson, former director of the subcommittee and now the head of the American Indian studies department at the University of Minnesota at Duluth. “President Clinton signed it into law. This AIRFA amendment on peyote still stands.”

Using Peyote to Prevent Birth Control

Fast forward 20 years: The owners of Hobby Lobby and two other closely held for-profit corporations who believe life begins at conception and that it would violate their Christian beliefs to pay for birth control, sued the federal government under the auspices of RFRA.

Writing for the majority, Justice Samuel Alito agreed with their argument: “As applied to closely held corporations, the [Department of Health and Human Services] regulations imposing the contraceptive mandate [of Obamacare] violate RFRA,” he wrote. “RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mardel.”

The high court further offered that the federal government could find ways to pay for birth control coverage if it wishes to do so.

And that is how a law rooted in protecting Indian religious freedom was successfully used by major companies to shield them from having to pay for birth control for employees covered under the companies’ health plans.

Say What?

It was a shocking development to many Indian-focused legal experts who were working in the trenches during the peyote-based foundations of RFRA, and who have since seen that very law applied by the federal courts in ways that they feel are unjust toward American Indian religious practices involving sacred sites.

Stephen Pevar, a lawyer with the American Civil Liberties Union (ACLU) who has long argued in favor of protections for Indian religious practices, said he never envisioned that the RFRA would be used for such a purpose. “[I]t never occurred to me,” he said. “I doubt if it occurred to anyone.”

Pevar followed the drafting of the RFRA and early Indian advocacy for it by respected Native American legal scholars including Jack Trope, director of the Association on American Indian Affairs, and Walter Echo-Hawk.

Trope, too, was surprised to see the RFRA used in such a manner. “I can’t say that I ever really thought about the issue of for profit corporations utilizing RFRA until these cases came up,” he says.

Using RFRA Against Indians & Women

In 1997, Indian-focused legal advocates were disturbed to see the RFRA watered down by the Supreme Court, which ruled then in City of Boerne v. Flores that the law was applicable to the federal government but not to the states. Thus, tribal citizens who have their religious freedoms usurped by states, as happened in the original Smith Peyote case, are left unprotected by federal law.


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Sammy7's picture
Submitted by Sammy7 on
Mr. Rob Capriccioso, First Peoples are about respect for all life, including that of the two leggeds. I do not cherry pick life to kill my own children. I ask you, would you have rather been aborted? I rest my case.

Wanbli Koyake's picture
Wanbli Koyake
Submitted by Wanbli Koyake on
Hau mitakuyepi, Greetings my Relatives, Wopila tanka cicu, Giving a big Thanks to those who are defending Original Peoples kinship with Mother Earth. I don’t know how you do it, making sense of wasicu/greedy written legalese. It's unfortunate that the U.S. Supreme Court in it's role of proxy/junkyard dog for the Wasicu (Greedy) can't see straight, can't tell it straight. As far as I can tell, the wasicu houses of cards that are euphemistically called the U.S. Supreme Court and Federal Indian Law have always been ramshackle contraptions in constant need of propping and patching up. It's unfortunate, because such shoddiness is inherently irreparable, costly, and dangerous. Our Ancestral Lifeways teach, “Tell it straight, don’t add anything, don’t leave anything out!” is crucial to two-legged kinship with Life. It's not moralistic, meaning anthropocentric human values encrust and overrule the value of Life. Our teachings are true to Life and are empirical, you can see for yourself the truth of any particular Lifeway teaching. Given the wholistic power of Life, the good and bad, the safe and dangerous, human negligence –lying, not telling it straight– will always result in destructive consequences. Power evokes balance, you have to pay attention to the good and bad of anything in order to be respectful and maintain some kind of balance. My Elders would say if you live by Lifeway, you’ll always be above man-made law because the responsibilities of Original Law (All Life is Related) are exacting. Telling it straight (so-called oral tradition) is an exacting standard for the continuation of Life, whereas, the standards of written languages are obviously lax and idiosyncratic to western civilization. I'm an avid reader and I’ve read plenty, things I ordinarily wouldn’t have read, while in jail. In order to defend myself I've had to study wasicu law from a jailhouse lawyer perspective –it's my humble opinion that it’s humanly impossible to truly understand and know greedy law. The convoluted logic and rationale inherent in greedy law are evidence of it’s crookedness. The lies perpetuated in the so-called rule of law are manifold and such codified ignorance makes one’s skull plates expand from the brain-swelling –it not only hurt physically but was harmful to my psychic well-being to try and absorb such nonsense. So again wopila! to those who can make sense of such crookedness! @Sammy7, I recognize other Original People’s teachings, but you don’t reference any particular People or Elder –where are you from? Who are your People? It appears that you aren’t telling it straight or maybe whomever you learned from didn’t tell it straight. When Original Teachings are bent or shaped to fit a lie, they lose their power and are useless to both the living and unborn generations. The respect you attribute to “First Peoples” extends to each individuals personal relationship with Life, we respect our relative’s path in Life and are taught to ask questions before judging and to, always, “Tell It Straight!”