Bench Memos

The HHS Contraception Mandate vs. RFRA—“Substantially Burden”

See Introduction, “Exercise of Religion

Does the HHS mandate “substantially burden” the “exercise of religion” by those persons and organizations who have religious beliefs that forbid them from providing contraceptives and abortifacients? Again, the answer is clearly yes.

Let’s begin with what the “substantial burden” test means under the pre-Smith regime that RFRA restored statutorily. As the Court made clear in Sherbert v. Verner, the question is not limited to whether a law “directly compel[s]” a person to act contrary to his religious beliefs but extends as well to “indirect” burdens. Adell Sherbert was denied unemployment benefits because she refused to work Saturdays. The state was not directly compelling her to work on Saturdays—or to seek employment at all. Nevertheless, as the Court put it:

The [agency] ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.

It is likewise clear that “substantial” is a very low threshold. In Wisconsin v. Yoder, for example, Jonas Yoder and Wallace Miller, the two fathers who refused to send their children to high school, “were fined the sum of $5 each.”

Employers who violate the HHS mandate, and who thereby fail to provide the coverage HHS deems necessary under Obamacare, incur an annual penalty of roughly $2000 per employee. More precisely, as I understand it, the base penalty is $2000 x (number of full-time employees minus 30), and the base is increased each year by the rate of growth in insurance premiums. So, for example, Belmont Abbey College (one of the two plaintiffs already challenging the HHS mandate), which has 200 full-time employees, is facing an annual base penalty of $340,000. Colorado Christian University (the other plaintiff) has 280 full-time employees and is facing an annual base penalty of $500,000.

It’s true, of course, that employers who object to the HHS mandate could avoid any fine by shutting down their operations. Likewise, Adell Sherbert could have stayed out of the labor market or worked part-time, and Jonas Yoder and Wallace Miller could have moved their families out of Wisconsin. The availability of that exit option plainly does not negate the “substantial burden” that each is subject to. To apply the Sherbert passage above to the HHS mandate:

The HHS mandate forces Catholic employers to choose between following the precepts of their religion and incurring huge fines, on the one hand, and abandoning one of the precepts of their religion in order to stay in business, on the other hand. Government imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against Catholics for their opposition to contraceptives and abortifacients.

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