How meritorious are the Catholic lawsuits? Part Two

Several of us, Scott in particular, have written about the lawsuits filed by dozens of Catholic organizations, in 12 different actions, challenging Department of Health and Human Services regulations implemented under Obamacare that would require most health insurance plans to include in the preventive services they cover all FDA-approved forms of contraception, including contraceptives that sometimes operate as abortifacients. The lawsuit alleges that the regulations violate both the First Amendment and the federal Religious Freedom Restoration Act (RFRA).

Earlier this year, Ed Whelan wrote an excellent analysis demonstrating that the HHS regulations clearly violate the RFRA. I recommend reading Ed’s piece in its entirety, in conjunction with Michael McConnell’s analysis of the same issue. However, I will summarize briefly what Ed wrote.

The RFRA provides 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—

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

Accordingly, there are four questions involved in determining whether the HHS mandate violates RFRA:

1. Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?
2. Does the HHS mandate “substantially burden” such exercise of religion?
3. Does application of the burden to the person further a “compelling governmental interest”?
4. Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?

If the answer to question 1 or question 2 is no, then there is no violation of the RFRA and no reason to reach questions 3 and 4. If the answers to question 1 AND question 2 are yes, then questions 3 and 4 come into play; if the answer to either question 3 or question 4 is no, then the RFRA has been violated.

There can be no doubt as to the answer of the first question – plainly it is yes. Ed also demonstrates that the HHS mandate substantially burdens the exercise of religion, under the standards established by the Supreme Court. As he puts it:

The HHS mandate forces Catholic employers to choose between following the precepts of their religion and incurring huge fines, on the one hand, and abandoning one of the precepts of their religion in order to stay in business, on the other hand. Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against Catholics for their opposition to contraceptives and abortifacients.

In light of these answers to the first two questions, the HHS mandate violates RFRA unless the burden imposed further a compelling governmental interest AND application of the burden is the least restrictive means of furthering that interest. The interest furthered by the HHS mandate is a marginal increase in access to contraceptives.

That interest does not seem compelling, particularly since the mandate exempts some plans – those that are grandfathered and those of employers of fewer than 50 people – from its requirements. These plans are exempt even if offered by secular employees with no religious objection to the substance of the mandate. And, as Prof. McConnell says, they exempt millions of people.

In any event, Ed shows that there are less restrictive means of furthering the government’s interest in providing employees of religious institutions with access to contraceptives. Secretary Sibelius has said that “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” Pharmacies and doctors also provide them. The mandate requires employers to subsidize the use of these providers.

A less restrictive alternative would be for the government to compensate the provider outside of any policies provided by the religious employer (note: this is not the so-called compromise President Obama offered, under which contraceptives would still be part of the employer’s plan). This alternative would restrict religious liberty less than the HHS mandate because the employer would not be required to sponsor an insurance plan that subsidizes services to which it has religious objections.

Given the existence of this alternative, the HHS mandate violates the RFRA.

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