Bench Memos

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The HHS Contraception Mandate vs. the Religious Freedom Restoration Act—Introduction


There they go again—“they” being the anti-religious zealots who are now dominating the Obama administration’s decision making.

Two weeks ago, in its ruling in the Hosanna-Tabor case, the Supreme Court unanimously rejected the Obama administration’s position that the Constitution does not require a “ministerial exception” to the employment-discrimination laws. The Court specifically repudiated what even Justice Kagan called the Obama administration’s “amazing” argument that the Religion Clauses have no bearing on the matter.

Unchastened, HHS Secretary Kathleen Sebelius last week renewed her declared “war” 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 Obamacare, 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 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”: 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 “serves primarily persons who share the religious tenets of the organization.” As the head of Catholic Charities USA observed, “the ministry of Jesus Christ himself” would not qualify for the exemption. 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 has properly aroused criticism across the political spectrum for its trampling of religious liberty, as this vehement “J’Accuse” essay by Michael Sean Winters, “a liberal and a Democrat,” illustrates. (For other examples, see the Washington Post’s house editorial and NRO’s.) Unlike Winters, I’m 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.

What I do find remarkable—even amazing (to reprise Justice Kagan’s term)—is that the HHS mandate appears to be so clearly unlawful. In particular, I don’t see how the Obama administration could actually believe that the HHS mandate is compatible with the federal Religious Freedom Restoration Act. (The Supreme Court held in City of Boerne v. Flores (1997) that Congress lacked the power to apply RFRA against the states, but the Court recognizes, as its decision in Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal (2006) makes clear, that RFRA applies against the federal government.)

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.

This standard applies “even if the burden results from a rule of general applicability.” 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.”

RFRA, I’ll note, is the Becket Fund for Religious Liberty’s lead ground of attack on the HHS mandate in the two cases that it has filed on behalf of Belmont Abbey College and Colorado Christian University.

I will explain in follow-up posts why I don’t see how the HHS mandate can be reconciled with RFRA.


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