Drafting a "sensible" conscience clause: a proposal for meaningful conscience protections for religious employers objecting to the mandated coverage of prescription contraceptives.

Author:Rudary, Daniel J.

"[U]nder the new rule our institutions would be flee to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics.... Could the federal government possibly intend to pressure Catholic institutions to cease providing health care, education and charitable services to the general public? Health care reform should expand access to basic health care for all, not undermine that goal." (1)

--Daniel Cardinal DiNardo, Archbishop of Galveston-Houston and Chairman of the US Catholic Bishops' Committee on Pro-Life Activities

CONTENTS INTRODUCTION I. DOES FACILITATING ACCESS TO CONTRACEPTION VIOLATE BONA FIDE RELIGIOUS BELIEFS? A. Whose Burden? The Economic Cost of Failing to Cover Contraceptive Products and Services B. Catholic Teaching on Artificial Contraception II. DOES THE HHS MANDATE REQUIRE CATHOLIC EMPLOYERS TO VIOLATE THEIR RELIGIOUS BELIEFS? III. MANDATED PRESCRIPTION CONTRACEPTIVE COVERAGE AND THE SUPREME COURT'S FREE-EXERCISE JURISPRUDENCE A. The Supreme Court's "Whimsical" and "Erratic" Free-Exercise Jurisprudence--From Sherbert to Lukumi B. Unsuccessful Challenges to State Contraceptive Mandates under Smith IV. THE FEDERAL CONTRACEPTIVE COVERAGE MANDATE IN LIGHT OF THE RELIGIOUS FREEDOM RESTORATION ACT A. Congress's Response to Smith: The Religious Freedom Restoration Act B. Preliminary Showings Required by the Act C. The Burden Shifts: Does the HHS Mandate Survive the RFRA? 1. Does the Mandate Further a Compelling Government Interest? 2. Is the Mandate the Least Restrictive Means of Furthering a Compelling Governmental Interest? V. A "SENSIBLE" SOLUTION A. Federalism-Based Solutions to the Contraceptive Coverage Dilemma B. Avoiding "Excessive Entanglement" Between Church and State: Modeling a Broader Exemption on Section 414(e) of the Internal Revenue Code CONCLUSION INTRODUCTION

On May 17, 2009, President Barack Obama took the stage at the University of Notre Dame to make a commencement appearance that was, by his own admission, "not ... without controversy." (2) Upset by the University's decision to bestow an honorary doctor of laws degree on a pro-choice President, many in the Catholic community called on Notre Dame to rescind Mr. Obama's invitation and reaffirm its commitment to the Church's teaching on the sanctity of human life. During his speech, the President attempted to mollify these concerns and achieve broader, bipartisan support for health care reform by calling for "a sensible conscience clause" rooted in the need to ensure that "all of our health care policies are grounded not only in sound science, but also in clear ethics." (3)

Less than a year after his speech at Notre Dame, President Obama laid the cornerstone of his domestic agenda by signing the Patient Protection and Affordable Care Act (ACA or Act) into law, fundamentally reforming the nation's health care system and spawning a political and legal debate that led all the way to the Supreme Court. (4) While the law's most controversial component has undoubtedly been the so-called "individual mandate" to purchase health insurance, a similarly passionate debate regarding the law's implications for religious employers has also brought the Obama Administration into direct conflict with the Catholic Church. (5)

The ACA regulates the national health insurance market by directly regulating group health plans and health insurance issuers. One of the provisions of the Act mandates that health plans provide coverage without cost sharing for women's preventive care and directs the Secretary of Health and Human Services (HHS) to determine which services are to be covered under the mandate. (6) On August 1, 2011, the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury promulgated an interim final rule on mandated preventative care that required all group health plans and health insurance issuers to provide, without cost sharing, all contraceptive methods and sterilization procedures approved by the Food and Drug Administration (FDA). (7)

The Catholic Church, however, has consistently taught that the use of contraception is gravely sinful. (8) While the HHS mandate includes an exemption for "religious employers," Catholic hospitals, universities, and charitable organizations have taken issue with its narrow criteria, (9) which require that a "religious employer" (1) have the primary purpose of inculcating religious values, (2) primarily employ only those who share its beliefs, (3) primarily serve individuals of the same faith, and (4) qualify as a nonprofit organization under Sections 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code. (10)

Rather than promoting the "sensible" compromise that President Obama spoke about at Notre Dame, Church leaders argued that this exemption has the effect of limiting conscience protections to religious organizations "that do not reach out to the world." (11) Notre Dame President Fr. John Jenkins, who originally lauded President Obama's 2009 commencement address as a roadmap for seeking common ground between the Administration and the Church, subsequently outlined the university's "impossible position" of either paying for "contraception and sterilization in violation of the Church's moral teaching" or discontinuing "employee and student health care plans in violation of the Church's social teaching." (12)

Fr. Jenkins was not the only one concerned with the implications of a rule requiring religiously affiliated employers to subsidize contraception. Following the Administration's announcement, Catholic churches across the country mobilized to fight the HHS mandate and draw the nation's attention to the issue of religious liberty. On Sunday, January 29, 2012, priests across the country stood in their pulpits and read a letter from the American bishops charging the Administration with "[casting] aside the First Amendment to the Constitution of the United States," and threatening civil disobedience if compelled to conform to the mandate. (13) Recognizing that this issue transcended Catholic teaching and spoke to broader constitutional concerns, secular publications began to enter the fray and opine that the President had "awakened a sleeping giant" with a decision that would have dire political consequences. (14) Others insinuated that by requiring Catholic

institutions to purchase contraception, the Administration was pursuing a "re-election agenda that requires an end to freedom of religion." (15) In response to these concerns, President Obama directed HHS to study solutions that would preserve the Administration's policy on access to preventive care while respecting the free-exercise rights of religious employers. (16) Subsequently, when the Administration finalized its interim rule on preventive care on February 10, 2012, President Obama announced that the HHS would initiate a further rulemaking procedure to modify the application of the mandate to religious employers. (17) During this process, the Administration is extending a temporary enforcement safe-harbor to "non-exempt, non-profit religions organizations" that will be in place until the first plan year that begins on or after August 1, 2013. (18)

Notwithstanding the President's compromise, the HHS mandate has continued to engender considerable legal controversy (19) and may very well remain vulnerable to a free-exercise challenge. To understand why, it is necessary to review both the religious and the legal issues at stake in this debate. Accordingly, Part I of this note will ask whether mandated contraceptive coverage actually has the potential to violate an employer's religious beliefs. Having concluded that compelling Catholic institutions to facilitate access to contraception would transgress deeply held religious values, Part II will assess whether the mandate's requirements (as modified by the President's February 2012 compromise) actually impose this burden on religious employers.

To redress these concerns, Part III will analyze what--if an--cause of action these organizations have under the Supreme Court's recent free-exercise decisions. As state courts applying this jurisprudence have shown, however, the doctrine handed down by the Court in Employment Division, Department of Human Resources of Oregon v. Smith poses an insuperable obstacle to free-exercise challenges against regulations like the HHS mandate that are facially neutral and generally applicable.

Notwithstanding Smith, the HHS mandate's facial neutrality and general applicability do not necessarily insulate it from a free-exercise challenge under current federal law. Accordingly, Part IV will analyze the mandate's requirements in light of the Supreme Court's interpretation of the Religious Freedom Restoration Act (RFRA) (20) in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal. This Note will argue that, unlike the failed challenges decided under Smith, a challenge to the federal HHS mandate is buttressed by the Supreme Court's application of the RFRA in O Centro, which upheld the RFRA's compelling interest test and empowered courts to fashion individualized exemptions to federal laws that burden religious exercise. (21)

Having concluded that the mandate's contraception coverage requirement is unlikely to satisfy the RFRA's compelling interest analysis, Part V will put forth the proposal that, short of repeal, the mandate's exemption criteria should be broadened to provide "sensible" conscience protections to institutional religious employers who are currently placed in "an impossible position" by the mandate's limited exemption. Should the Administration fail to follow this course, it is likely that federal courts, following the lead of the Supreme Court in O Centro, will create specific exemptions for as many religious institutions that decide to challenge the mandate under the RFRA. Ultimately, this legal quagmire can be avoided by...

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