According to law professor Jonathan Adler, the U.S. Court of Appeals for the D.C. Circuit effectively overturned a district court’s dismissal of a challenge to the so-called “contraception mandate,” a regulation issued by the Department of Health and Human Services that employer-provided health care plans include coverage for all FDA-approved forms of contraception without cost-sharing.
Various religious employers have objected to this requirement citing the First Amendment’s free-exercise clause and, more persuasively, the Religious Freedom Restoration Act (RFRA). The district court had dismissed the case because the Obama administration claimed it would change the mandate for religious schools and hospitals before it took effect, making the lawsuit unripe. As Adler notes, the appeals court turned that self-serving administration claim into a binding commitment:
"In its brief order, the D.C. Circuit explained that the district court was wrong to dismiss the suit against the mandate for lack of standing as 'the colleges clearly had standing when these suits were filed.' The ripeness question 'is more difficult,' the court explained, because HHS has promised to address religious employers’ claims in a new rulemaking. Taking HHS at its word, the D.C. Circuit concluded the lawsuits should be held in abeyance, pending further action by HHS.
At oral argument, the government . . . represented to the court that it would never enforce [the contraceptive mandate] in its current form against the appellants or those similarly situated as regards contraceptive services. . . There will, the government said, be a different rule for entities like the appellants, . . and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013.
We take the government at its word and will hold it to it. . .
As a consequence of this ruling HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception. The interesting question will be how this is to be accomplished under existing statutory authority. Moreover, the Administration’s proposed fix — allowing religious employers to exclude contraception coverage but requiring insurers to provide separate contraception coverage to employees at no charge — would do nothing to alleviate the burden on those religious employers that self-insure (which many do because, among other reasons, it provides a way to escape state-level contraception mandates).
Several other courts have issued injunctions against the contraception mandate as applied to religious employers, and the U.S. Court of Appeals for the Eighth Circuit has issued a temporary injunction against it. At OneNewsNow, I earlier explained why the contraception mandate for religious employers violates the Religious Freedom Restoration Act and (although it is a closer question) the Free Exercise Clause.
CEI is not hostile to contraception and, indeed, has long supported making Plan B contraception publicly available without a prescription. But just as Jewish deli owners ought not have to serve bacon and pork, Catholic schools and hospitals ought not have to pay for contraceptives or abortifacients.
My argument is not religious. I'm not Catholic, I have no personal objections to birth control and I don't seek to impose my -- or anyone else's -- religious views on others. As the Supreme Court has emphasized, "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." See Thomas v. Review Board, 450 U.S. 707, 714 (1981). Thus, this is not, as some of those who have contacted me view it, about restricting "women’s sexual choices" as part of a "war on women." The point is people can pay for their own contraception. It is not expensive -- even if one accepts the Obama administration's ludicrously inflated estimates of the lifetime cost of contraceptives. And this is not about restricting women's sexual choices. It's merely saying others ought not be rquired to subsidize the exercise of those choices. Forcing insurers to pay for routine contraceptives is like forcing your auto insurer to pay for routine oil changes.
Some have argued the federal contraceptive mandate must be constitutional as applied to religious schools and hospitals because some states have similar mandates, which were upheld by lower courts, and religious enterprises have supposedly managed to live under such laws. This misses three key points. First, religious institutions were able to avoid those state laws by self-insuring and taking advantage of federal preemption of such mandates for self-insured entities. Second, those laws may have been less vulnerable to a Free Exercise challenge by virtue of being neutral laws of general applicability, unlike Obamacare, which contains various exceptions to its mandates for secular reasons, and thus must provide religious exemptions as well. Third, those state laws did not have to comply with the Religious Freedom Restoration Act, which limits only federal regulations, not state laws and regulations, and which requires burdens on religious beliefs to be justified by a compelling state interest that cannot be achieved less intrusively. As I explained in The Washington Post:
the Obama administration’s recent rule requiring Catholic hospitals and schools to cover contraceptives and certain abortifacients starting in 2013. . . violates the federal Religious Freedom Restoration Act (RFRA). [Rachel] Maddow suggested that the rule must be valid because New York state adopted a similar rule. But there is a crucial legal difference between federal and state governments. State governments are no longer subject to the RFRA, thanks to a 1997 Supreme Court ruling. But the federal government is, based on a 2006 Supreme Court decision, which ruled that the RFRA limits federal regulatory power, and requires certain religious exemptions. So that law continues to shield religious schools and hospitals from federal regulations that order them to violate their religious tenets.
RFRA requires the government to justify restrictions on religious freedom by demonstrating they are necessary to achieve a compelling government interest and that any such restriction be as narrowly tailored and unintrusive as possible. That's not true here. People can pay for their own contraceptives, and even if they couldn't, the government could pay for them itself -- if its interest in promoting their use truly was all that compelling. It wouldn't need to force religious hospitals and schools to pay for them in order for contraceptives to be accessible to those who want them.