A Compelling Case Against the Contraceptive Mandate

Two former Bush administration officials have written an insightful legal opinion in the Wall Street Journal on the contraceptive mandate. Not only is the mandate unconstitutional in their opinion, it is in conflict with current law. They quickly demolish the accounting gimmick where the insurer is required to to fulfill the mandate should the insured have moral objections to the mandate. The Archdiocese of Washington for instance self insures, as do almost all Southern Baptist institution under a single insurer called Guide Stone Financial.

The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.

That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.

The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.

The authors go on to write that the Religion Freedom Restoration Act must be explicitly overridden and the is no language in Obamacare that does that. The birth-control mandate proposed by Health and Human Services is thus illegal.

The "free exercise of religion" is not limited to religious institutions. It is an individual right. Government cannot force an individual, such as a business owner to violate his conscience. The authors cite a case in Wisconsin, Wisconsin v. Yoder, 1972, where the parents were fined $5 for failing to send their teenage children to a public school. The Court found that even $5 was too much of an imposition and violated the First Amendment. The authors also note that the Court has prohibited employers from forcing employees to work on the Sabbath.

The writers don't make the point but following their argument, any individual can be exempted from the Obamacare individual mandate if it violates his religious principle and all that Sebelius, Obama et al can do is learn to like it. I would expect the First Amendment to make its way into the Supreme Court arguments on Obamacare. The Court has created two tests of the Religious Freedom Restoration Act.

The birth-control mandate also fails the Religious Freedom Restoration Act's "compelling governmental interest" and "least restrictive means" tests.

Does the mandate further the governmental interest in increasing cost-free access to contraceptives by means that are least restrictive of the employer's religious freedom? Plainly, the answer is no. There are plenty of other ways to increase access to contraceptives that intrude far less on the free exercise of religion.

This point has been made countless times in public debate but the mandate proponents always fall back on the argument that nothing is too compelling when a woman's right to contraceptives is at stake.

The "compelling interest" claim is further undercut by the mandate's exclusion, for purely secular reasons, of employers who offer "grandfathered" plans. These are employer-provided plans that existed at the time ObamaCare was enacted and can continue to operate so long as they do not make major changes. They cover tens of millions of enrollees, according to a recent estimate by Health and Human Services.

A lawyer for the Becket Fund has stated that winning the case in court against the mandate is a slam dunk. I think she is right.