Bench Memos

The HHS Contraception Mandate vs. RFRA—Obamacare Does Not Trump RFRA

In response to my series of posts arguing that the HHS contraception mandate clearly violates the Religious Freedom Restoration Act, a couple of readers have raised the question whether the Obamacare legislation overrides RFRA in this regard. That’s a sensible question, as it was certainly within the power of Congress to do so. The answer to the question, however, is clear: The Obamacare legislation does not displace RFRA’s protections for those employers who have religious objections to providing health insurance that covers contraceptives and abortifacients.

RFRA itself provides that a later-enacted federal law is subject to RFRA (as are regulatory implementations of that law) “unless such law explicitly excludes such application by reference to this chapter.” In other words, RFRA bolsters the already-robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit. 

There is nothing in the Obamacare legislation that explicitly overrides RFRA. (Nor is there anything that impliedly does so with respect to the HHS contraception mandate.)

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