Bench Memos

The HHS Contraception Mandate vs. RFRA—Some Closing Observations

As Bishop David Zubik of the Diocese of Pittsburgh sums up the HHS mandate that requires most employers to cover contraceptives and abortifacients in their health-insurance plans:

The Obama administration has just told the Catholics of the United States, “To Hell with you!”

As I have spelled out in the foregoing five posts, I believe that the HHS mandate, beyond being an assault on general principles of religious liberty, is an open-and-shut violation of the Religious Freedom Restoration Act. Experts in the field whom I have consulted heartily agree. If there is anyone who believes that my analysis is flawed, I would be happy to consider any counter-arguments, and I will, as usual, make any appropriate corrections to my analysis.

I would like to close this initial presentation with three points:

1. RFRA might often be violated inadvertently, when legislators or policymakers neglect to give adequate attention to how a law or regulation will affect an obscure religious minority or when the consequences are genuinely difficult to foresee in advance. Here, by contrast, the Obama administration knew exactly what it was doing. Both in advance of its August 2011 interim final rule and before its recent final announcement, the administration received thousands and thousands of comments about the impact that its rule would have on employers who had religious objections to covering contraceptives and abortifacients. The Obama administration’s violation of RFRA is knowing and willful conduct that displays contempt for the religious views of those it seeks to coerce.

2. One must wonder what legal advice, if any, HHS Secretary Sebelius sought before finalizing the mandate. Did HHS lawyers actually advise whether the mandate violated RFRA? And, if so, what was their advice? Did HHS solicit the advice of the Department of Justice’s Office of Legal Counsel? Or was it not important enough, or too inconvenient, to get well-informed legal advice?

3. Sebelius claims in her announcement that the HHS mandate “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” The Obama administration made a similar claim in the Hosanna-Tabor case, when it contended that its novel position that there was no “ministerial exception” to the employment-discrimination laws struck a proper balance. But as Chief Justice Roberts concluded his unanimous opinion,

[T]he First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

So too, here on the HHS mandate, the Religious Freedom Restoration Act has struck the balance (the same balance, as this post of mine notes at the end, that the Free Exercise Clause requires under the circumstances): Employers whose religious convictions forbid them from providing coverage for contraceptives and abortifacients must be free not to do so.

Most Popular

Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
World

How to Make China Pay

One of the big questions facing the international community today is how to hold China legally and politically accountable for all its dishonesty and harm to people around the world. According to reports, U.S. intelligence agencies have confirmed to the White House that China has deliberately understated the ... Read More
World

How to Make China Pay

One of the big questions facing the international community today is how to hold China legally and politically accountable for all its dishonesty and harm to people around the world. According to reports, U.S. intelligence agencies have confirmed to the White House that China has deliberately understated the ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More