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Bench Memos

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Explaining the Basics on the HHS Mandate and “Substantial Burden”



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As I spell out in Part II of my law-review essay on how the HHS mandate violates the federal Religious Freedom Restoration Act, it ought to be a simple matter for anyone to recognize that the HHS mandate substantially burdens an employer’s refusal, for religious reasons, to provide health insurance that covers contraceptives and abortifacients. Simply put, the HHS mandate makes such refusal illegal and subjects the refusing employer to massive fines. Under clear Supreme Court precedent, this plainly amounts to a substantial burden.

I’m reliably informed that, as of now, the plaintiff business owners and businesses that have challenged the HHS mandate have won preliminary injunctive relief in eighteen cases and have been denied relief in only six cases. Astoundingly, most or all of the six outlier courts that have denied relief have done so on the ground that the HHS mandate doesn’t impose a substantial burden. But as I explained of one such ruling (by the Tenth Circuit in the Hobby Lobby case), what those courts are really ruling, without understanding what they are doing, is that an employer’s refusal to provide health insurance coverage for contraceptives or abortifacients cannot be an exercise of religion. Such a ruling is patently wrong, as the only relevant question for purposes of the exercise of religion element is whether the objector is acting from a sincerely held religious conviction. As the Supreme Court has made clear, it is not the proper business of the courts to impose their own view on what constitutes improper complicity in immoral conduct.

For those who would like a more thorough explanation of these elementary points, I’m pleased to recommend law professor (and Becket Fund attorney) Mark Rienzi’s brief essay in the Virginia Law Review’s online magazine.



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