As discussed in my previous posts, the HHS mandate imposes a “substantial burden” on the “exercise of religion” of those individuals and organizations who, for religious reasons, oppose covering contraceptives and abortifacients in the health insurance plans they provide. Under the Religious Freedom Restoration Act, the HHS mandate can be applied to those employers only if the government can demonstrate 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.” If the HHS mandate can’t satisfy both these prongs, it violates RFRA.
I’ll address the “least restrictive means” prong in this post.
The question under the “least restrictive means” test is whether imposing the HHS mandate on an employer who has religious objections to providing insurance coverage for contraceptives and/or abortifacients furthers the governmental interest in increasing access to contraceptives via the means that is least restrictive of the religious liberty of the objecting employer. The obvious answer to this question is no.
HHS Secretary Sebelius’s own announcement of the HHS mandate acknowledges 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 contraceptive services. An enrollee who has insurance coverage for contraceptives and abortifacients will go to one of these providers to receive the covered services. All that the HHS mandate does is force objecting employers to subsidize these services through the insurance plans they sponsor.
There are various other means of increasing access to contraceptives that are less restrictive of religious liberty than the HHS mandate is: for example, direct government provision of contraceptives; mandates on contraceptive providers; and tax credits or deductions or other financial support for contraceptive purchasers. (To be sure, there are plenty of reasons to oppose these alternatives, and I wouldn’t support any of them. But the dispositive point under RFRA is that they are available as less restrictive means.)
Because the HHS mandate doesn’t satisfy the “least restrictive means” test, it violates RFRA.