The fact that the HHS mandate flunks RFRA’s “least restrictive means” test suffices to establish that the mandate violates RFRA. But in the interest of completeness, let’s address the other prong of the RFRA test: whether the government can demonstrate that application of the HHS mandate to an objecting employer “is in furtherance of a compelling governmental interest.”
The governmental interest that the HHS mandate is asserted to advance is increased access to contraceptives. For purposes of applying RFRA, I readily take for granted the legitimacy of that governmental interest. But there remain the interrelated questions (a) whether that governmental interest is “compelling,” and (b) whether imposing the HHS mandate on an objecting employer “is in furtherance” of a compelling interest.
In this context, it is difficult to see how the government has a “compelling” interest in marginally increasing access to contraceptives by requiring employers to provide coverage of them in their health-insurance plans. As the Supreme Court stated just last year in an analogous context in the violent video-games case (emphasis added),
Even if the sale of violent video games to minors could be deterred further by increasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.
If the government genuinely regarded marginally increased access to contraceptives to be a compelling interest, what possible sense would it make to exempt grandfathered plans from the obligation to provide insurance coverage for contraceptives?
Similarly, under RFRA, how can the “application of the burden to the person”—that is, the application of the HHS mandate to an objecting employer—be deemed to be “in furtherance of a compelling governmental interest” when the government has found it unnecessary to apply the same burden to employers who don’t have religious objections to the mandate? In this regard, I’ll note that employers who employed fewer than 50 full-time employees during the preceding calendar year are not obligated to make any health-care insurance coverage available to their employees under Obamacare. 26 U.S.C. § 4980H(c)(2). Like employers with grandfathered plans, they thus have no obligation to provide insurance that covers contraceptives and abortifacients, and they face no penalty for not doing so. (Unlike with grandfathered plans, if these employers don’t provide qualifying insurance, their employees will be channeled into health exchanges, where the HHS mandate will apply.)
It would seem that HHS has a greater interest in punishing religiously based opposition to contraception and abortion than it has in increasing access to contraceptives. And that punitive interest is not legitimate, much less compelling, under RFRA.
(The points raised in this post would also establish that the HHS mandate is not a neutral and generally applicable law for purposes of Free Exercise analysis under Employment Division v. Smith. The Becket Fund’s complaints in both the Belmont Abbey College case and the Colorado Christian University case include Free Exercise claims.)