The HHS contraception mandate vs. the Religious Freedom Restoration Act.

• Author: Whelan, Edward
• Position: Department of Health and Human Services

INTRODUCTION

In mid-January 2012, in its ruling in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, (1) the Supreme Court unanimously rejected the Obama administration's position that the Constitution does not require a "ministerial exception" to the employment-discrimination laws. (2) The Court specifically repudiated what even Justice Elena Kagan called the Obama administration's "amazing" argument that the Religion Clauses had no bearing on the matter. (3)

Unchastened, the Department of Health and Human Services (HHS) Secretary Kathleen Sebelius one week later renewed her declared "war" (4) against the Catholic church in America and against faithful Catholics (as well as against other religious organizations and believers who share the Catholic opposition to contraceptives and/or abortifacients). Specifically, she announced that HHS, in implementing President Obama's signature healthcare legislation, (5) 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). (6)

The HHS rule would allow (but not require) the HHS bureaucracy to establish exemptions from this mandate only for an extremely narrow category of "religious employers" (7): an organization qualifies as a "religious employer" only if its purpose is the "inculcation of religious values," it "primarily employs persons who share the religious tenets of the organization," and it "primarily serves persons who share the religious tenets of the organization." (8) As the head of Catholic Charities USA observed, "the ministry of Jesus Christ himself" would not qualify for the exemption. (9) Nor will Catholic Charities, Catholic Relief Services, Catholic hospitals, food banks, homeless shelters, most Catholic schools, and even many or most diocesan offices, much less Catholic business owners who strive to conduct their businesses in accordance with their religious beliefs.

The HHS rule properly aroused criticism across the political spectrum for its trampling of religious liberty, including a vehement "J'Accuse" essay by Catholic thinker Michael Sean Winters, who describes himself as "a liberal and a Democrat." (10) Unlike Winters, I am not at all surprised that, when President Obama goes beyond talk to action, he sides with his "friends at Planned Parenthood and NARAL" and "treat[s] shamefully those Catholics who went out on a limb to support" him. (11)

What I do find remarkable--even amazing (to reprise Justice Kagan's term)--is that the HHS mandate is so clearly unlawful. In particular, the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA). (12)

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." (13)

This standard applies "even if the burden results from a rule of general applicability." (14) The term "exercise of religion" is, in turn, defined broadly to mean "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." (15)

RFRA provides that a later-enacted federal law, along with its regulatory implementation, is subject to RFRA "unless such law explicitly excludes such application by reference to this chapter." (16) In other words, RFRA bolsters the already robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit. There is nothing in PPACA that explicitly overrides RFRA. (Nor is there anything that impliedly does so with respect to the HHS mandate.) So the HHS mandate must comply with RFRA.

There are thus 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?

1. "EXERCISE OF RELIGION"

   Does a person engage in an "exercise of religion" when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?

   There can be no serious dispute that a person engages in an "exercise of religion" under RFRA when, for religious reasons, he performs, or abstains from performing, certain actions. (This issue is distinct from the question whether and when a prohibition on that exercise of religion amounts to "prohibiting the free exercise [of religion]" (17) in violation of the First Amendment.)

   Consider the "exercise of religion" involved in some leading Supreme Court cases. In Sherbert v. Verner, (18) an individual's religious beliefs forbade her from working on Saturdays. (19) In Wisconsin v. Yoder, (20) the parents of teenaged children had religious beliefs that prohibited them from sending their children to high school. (21) In Thomas v. Review Board of the Indiana Employment Security Division, (22) a worker's religious beliefs barred him from participating in the production of armaments. (23)

   While the Court's decision in Employment Division v. Smith (24) altered the standard for assessing which laws will be deemed to "prohibit[ ] the free exercise [of religion]" (and thus violate the First Amendment), it reaffirmed that "the 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine...