Bench Memos

The HHS Contraception Mandate vs. RFRA—“Exercise of Religion”

As the text of the Religious Freedom Restoration Act (presented in my introductory post) makes clear, there are four questions involved in determining whether the HHS mandate violates RFRA:

1. Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?

2. Does the HHS mandate “substantially burden” such exercise of religion?

3. Does application of the burden to the person further a “compelling governmental interest”?

4. Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?

If the answer to question 1 or question 2 is no, then there is no issue under RFRA and no reason to reach questions 3 and 4. If the answers to question 1 and question 2 are yes, then questions 3 and 4 come into play; if the answer to either question 3 or question 4 is no, then RFRA has been violated.

I’ll address the first question in this post and the others in follow-on posts.

I don’t see how anyone can seriously dispute that a person engages in an “exercise of religion” under RFRA when, for religious reasons, he performs, or abstains from performing, certain actions. (I’m not now addressing the distinct question whether and when a prohibition on that exercise of religion amounts to “prohibiting the free exercise [of religion]” in violation of the First Amendment.) Consider the “exercise of religion” involved in some leading Supreme Court cases: In Sherbert v. Verner (1963), an individual’s religious beliefs forbade her from working on Saturdays. In Wisconsin v. Yoder (1972), the parents of teenaged children had religious beliefs that prohibited them from sending their children to high school. In Thomas v. Review Board (1981), a worker’s religious beliefs barred him from participating in the production of armaments.

While the Court’s decision in Employment Division v. Smith (1990) altered the standard for assessing which laws will be deemed to “prohibit[] the free exercise [of religion]” (and thus violate the First Amendment), it reaffirmed that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” (And, of course, even if Smith had narrowed the constitutional definition of “exercise of religion,” the very point of RFRA was to restore the pre-Smith regime, so there would be no reason that Smith’s constitutional definition would narrow the meaning of RFRA’s statutory term “exercise of religion.”)

Indeed, HHS, in explaining its decision to allow the HHS bureaucracy to establish exemptions from the mandate for an extremely narrow category of “religious employers,” states that “it is appropriate [for the bureaucracy to take] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” (See page 46623 of HHS’s interim rule (emphasis added).) HHS is thus acknowledging that these employers are engaged in an “exercise of religion” (within the meaning of RFRA) when they refuse to provide health insurance that covers contraceptives. (Why else even contemplate a religious exemption?) Although HHS doesn’t see fit to allow exemptions to take into account the effect on the religious beliefs of other employers, that doesn’t change the fact that it implicitly concedes that other employers who refuse, for religious reasons, to provide health insurance that covers contraceptives are likewise engaged in an “exercise of religion.”

In short, it’s clear, for purposes of RFRA, that a person engages in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients.

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