The HHS Contraception Mandate vs. RFRA—“Compelling Governmental Interest”

by Ed Whelan

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.

According to a June 2010 Guttmacher Institute “fact sheet” on contraceptive use in the United States, “Nine in 10 employer-based insurance plans cover a full range of prescription contraceptives.” Further, HHS Secretary Sebelius’s announcement acknowledges that even when employers “do not offer coverage of contraceptive services” to their employees, “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” Not to mention, of course, the countless pharmacies and doctors who dispense contraceptives. So no one can seriously maintain that there is a general problem of lack of access to contraceptives.

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.

Further, the proposition that the governmental interest in marginally increasing access to contraceptives is compelling is severely undercut by the fact that lots of employers have, for purely secular reasons, been exempted from the obligation that the HHS mandate imposes. Specifically, so-called “grandfathered” plans need not comply with the “minimum essential coverage” provisions of Obamacare, including the HHS mandate to cover contraceptives and abortifacients. In July 2010, in the very order in which HHS first set forth its interim final rules for coverage of preventive services under Obamacare (as well as in this contemporaneous HHS publication), HHS projected (as its “mid-range estimate”) that 55% of large-employer plans would remain grandfathered in 2013 and that 34% of small-employer plans would remain grandfathered of that year. Large-employer plans accounted for 133 million enrollees, and small-employer plans accounted for 43 million enrollees, so HHS’s “mid-range” projections anticipated that roughly 88 million Americans would not be subject to Obamacare’s “minimal essential coverage” provisions in 2013.

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.)