Bench Memos

The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”

As discussed in my previous posts, the HHS mandate imposes a “substantial burden” on the “exercise of religion” of those individuals and organizations who, for religious reasons, oppose covering contraceptives and abortifacients in the health insurance plans they provide. Under the Religious Freedom Restoration Act, the HHS mandate can be applied to those employers only if the government can demonstrate that “application of the burden to the person … (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” If the HHS mandate can’t satisfy both these prongs, it violates RFRA.

I’ll address the “least restrictive means” prong in this post.

The governmental interest that the HHS mandate is asserted to advance is increased access to contraceptives. For purposes of applying the “least restrictive means” test, I will take for granted (i.e., assume for the sake of argument) that that governmental interest is compelling and that imposing the HHS mandate on an objecting employer furthers that compelling governmental interest.

The question under the “least restrictive means” test is whether imposing the HHS mandate on an employer who has religious objections to providing insurance coverage for contraceptives and/or abortifacients furthers the governmental interest in increasing access to contraceptives via the means that is least restrictive of the religious liberty of the objecting employer. The obvious answer to this question is no.

HHS Secretary Sebelius’s own announcement of the HHS mandate acknowledges that “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support.” Pharmacies and doctors also provide contraceptive services. An enrollee who has insurance coverage for contraceptives and abortifacients will go to one of these providers to receive the covered services. All that the HHS mandate does is force objecting employers to subsidize these services through the insurance plans they sponsor.

One simple alternative means by which the government could increase access to contraceptives is to directly compensate the providers for the services. In other words, an individual would receive the services from a provider for free, and the government would compensate the provider. This means would clearly be less restrictive of the religious liberty of the objecting employer, as the employer would not be required to sponsor an insurance plan that subsidizes services that he has religious objections to. (It is true, of course, that the employer would have an interest as a taxpayer in not subsidizing objectionable services, but the obligation on an individual to pay a general income tax is far less restrictive of his religious liberty than the HHS mandate is.)

There are various other means of increasing access to contraceptives that are less restrictive of religious liberty than the HHS mandate is: for example, direct government provision of contraceptives; mandates on contraceptive providers; and tax credits or deductions or other financial support for contraceptive purchasers. (To be sure, there are plenty of reasons to oppose these alternatives, and I wouldn’t support any of them. But the dispositive point under RFRA is that they are available as less restrictive means.)  

Because the HHS mandate doesn’t satisfy the “least restrictive means” test, it violates RFRA.

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