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Bench Memos

NRO’s home for judicial news and analysis.

No Lawful “Compromise” on the HHS Contraceptive Mandate



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Word is that the White House today will float some sort of supposed “compromise” version of the HHS contraceptive mandate. There is only one revision that will satisfy the clearcut command of the Religious Freedom Restoration Act (and a correct application of the Free Exercise Clause, even post-Employment Division v. Smith—see last point here ): Any employer with a religious objection to providing coverage for contraceptives and/or abortifacients must be free to opt out of providing such coverage. The employer’s ability to do so can’t be conditioned on whether he is operating a “religious” organization. The government can then pursue any of various other means to provide contraceptive services to affected employees—means that don’t involve dragooning objecting religious employers to violate their deeply held beliefs.



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