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.


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