The Contraception Mandate Part I

The Affordable Care Act is changing the health care landscape. Among the changes is that employers that provide health insurance must cover preventive services, including contraception. Although the requirement does not apply to religious organizations, it does apply to religiously affiliated ones. This “contraception mandate” has generated a huge outcry from some religious leaders, most notably the United States Conference of Catholic Bishops. They insist that forcing Catholic hospitals, schools, or charities to include contraception in their employee insurance plans violates religious liberty.

It doesn’t. It certainly doesn’t violate the Free Exercise Clause. After Employment Division v. Smith, neutral laws of general applicability are constitutional, regardless of the burden they may impose on religious practices. Indeed, the law upheld in Smith banned a religious sacrament. But it was neutral, in that it did not intentionally target religion, and it was generally applicable, in that it was neither riddled with exceptions nor grossly underinclusive. The regulation requiring employers who provide health insurance to include contraception in that coverage is likewise a neutral law of general applicability.

While a recent Supreme Court decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC) carved out an exception to this “neutral-generally-applicable-laws-do-not-violate-the-Free-Exercise-Clause” rule, it does not apply here. This exception — which holds that religious institutions are immune from neutral, generally applicable anti-discrimination laws when they are sued by their ministers — was designed to protect churches’ ability to pick their leaders without interference from the state. However, the provision by religiously-affiliated organizations of health insurance to their employees, many of whom do not belong to the same faith as their religious employer, clearly does not involve ministers or internal church governance. In short, there is no valid Free Exercise Claim.

What about the Religious Freedom Restoration Act? Stay tuned.

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20 Responses

  1. TS says:

    The complaint spells out several theories that get around the Smith test, including as you suggest federal RFRA, an argument that the law isn’t actually generally applicable (see the Amish exception) or neutral, see, e.g., Kathleen Sebelius’s bellicose comments cited in the complaint, the exclusion of religiously affiliated groups from the consultation and other procedural irregularities that suggest non-neutrality and point toward Lukumi, rather than Smith, governing.

  2. PrometheeFeu says:

    First, it is important to note that while the Free Exercise Clause and the Religious Freedom Restoration Act are meant to embody religious liberty, they are not the same thing. The mandate clearly violates religious liberty by imposing a burden on religious practice. The Employment Division v Smith principle is a good one, but we should not kid ourselves and pretend that neutral laws of general applicability do not violate religious liberty just because they are constitutional.

    Also, the biggest problem with the contraception mandate is quite simply that the bundling of health care services with insurance services under a fixed-price scheme tends to raise the cost of health care. We would all be better off if we paid for contraception directly rather than indirectly.

  3. Joe says:

    “The mandate clearly violates religious liberty by imposing a burden on religious practice.”

    By protecting the non-believing janitor at a hospital that is run by a religious institution from choosing to use their own health care pursuant to their religious tenets?

    Somehow, this is a problem but individual choice allows funding to a religious school for “secular purposes” w/o it furthering religion. Note that the institution isn’t required to hand out contraceptives, advocate its use & some analysis suggests it costs them LESS.

    This isn’t the first time at the rodeo for contraceptive mandates. States have them too & states have their own RFRAs and free exercise protections, many stricter than Oregon v. Smith. The EEOC already supported the mandate w/o some special broad exception demanded here years ago.

    “we paid for contraception directly rather than indirectly”

    The cost argument is debatable enough that there is a rational basis for the alternative and this basically is of the caliber of the need to radically re-arrange how we do insurance in this country. In reality, this is a thought experiment.

  4. PrometheeFeu says:


    “By protecting the non-believing janitor at a hospital that is run by a religious institution from choosing to use their own health care pursuant to their religious tenets?”

    Janitors at religious hospitals sign contracts that prohibit them from using birth control? I would answer that the solution is for the janitor to not sign such a contract, but then again, I doubt courts would enforce such a contract. It’s clearly against public policy and anyways, it’s specific performance of a personal nature. Nothing something courts are keen to enforce.

    “This isn’t the first time at the rodeo for contraceptive mandates. States have them too & states have their own RFRAs and free exercise protections, many stricter than Oregon v. Smith. The EEOC already supported the mandate w/o some special broad exception demanded here years ago.”

    I never claimed that such mandates violate free exercise protections. I argued that it violates religious liberty.

    “The cost argument is debatable enough that there is a rational basis for the alternative and this basically is of the caliber of the need to radically re-arrange how we do insurance in this country. In reality, this is a thought experiment.”

    It is of the nature of counter-factuals that they must be “thought experiments”. Nevertheless, I have never heard a rational argument whereby the bundling of birth control with other unrelated healthcare services and health insurance such that payment is indirect would not result in higher cost for birth control.

  5. Brett Bellmore says:

    By this reasoning, a generally applicable mandate that employers provide their employees with pulled pork sandwiches on a regular basis would be just fine. But somehow I expect we’ll never see such a mandate, as it would offend Muslims. Who, unlike Catholics, have a history of blowing up people who offend them.

    What’s that, you say? Employees could just buy their own damn pulled pork sandwiches, out of their pay? Well, yeah, they could just buy their own damned contraceptives, too. No difference. No difference at all.

    I think it’s a bit silly to pretend this law isn’t an infringement of religious liberty. It’s quite easy to imagine a whole range of laws of general application, designed to infringe the liberty of particular religions. This one was designed to offend Catholics.

    And, remember, it’s not as though the contraceptive mandate was actually required by the statutory text. No, they went out of their way to offend Catholics. Because what’s the point of having power, if you can’t force other people to violate their principles?

  6. Paul Horwitz says:

    This last comment seems remarkably silly, and I say that as someone who, in broad terms, either opposes the mandate or at least thinks the exceptions to it should have been drawn much more broadly. Whether one agrees with that policy or not, there is, of course, a serious public policy interest that the mandate seeks to serve; as much as I like barbeque, I am unaware of any similar public policy interest in providing it. I agree that the law is an infringement of religious liberty. But I see no evidence that this law was “designed to offend Catholics,” and less still that there is even a de facto rule in domestic American law that prefers offending Catholics to offending Muslims.

  7. Caroline Mala Corbin says:

    Good morning,

    I hope everyone in the path of Sandy is dry and safe.

    TS: You are right, there are several claims. I plan to discuss RFRA in my next post, and perhaps the others in later ones. (If you are curious, I have discussed all of them in my essay.)

    PrometheeFeu: I agree about Joe’s point questioning exactly who “we” are. Not all of us are better served by having to pay out of pocket for contraception. Not all of us, including those of us who may have religious reasons for using contraception, are burdened by the contraception mandate.

    Brett: The mandate was not designed to offend Catholics. It was designed to provide basic preventive health care to all employees, including the roughly 50% who are women.

  8. Brett Bellmore says:

    Contraception is not preventative health care, or if it is, it’s no different from tooth paste. Does the ACA mandate that insurance provide everyone with toothpaste? Vitamins? Bottled water so they stay properly hydrated?

    Contraceptives aren’t the sort of unscheduled expense insurance is intended for, they’re the sort of expense, elective and scheduled, that people pay out of their paycheck normally.

    Again, the actual legislation didn’t require that it be included, let alone that the mandate be forced upon religions. That was a decision the administration made by choice, and you really have to ask why.

  9. Paul Horwitz says:

    1) Leaving aside whether contraception is or isn’t different from toothpaste and assuming for the sake of argument that it is no different in kind, since when are differences in degree irrelevant to questions of public policy?

    2) Because the administration was going after the liberal vote? Because it was going after the women’s vote? Because it is strongly pro-choice or pro-contraception or, for that matter, pro-abortion? If one really asks why with an open mind, and even if one includes all kinds of cynical or political calculations as part of that speculation, there are all kinds of reasons besides deliberately setting out to offend (a subset of the) Catholic population.

  10. Joe says:

    I’m dry but my power was out for a couple a days, so this reply is late. I bow to Prof. Corbin and another professor at ACS Blog who covers this issue better than I, but will continue with my .02

    As to #8, contraception is preventive health care. If taking a pill that changes your body chemistry in certain respects, a pill (or other device) you often to to the doctor to obtain, to prevent various negative effects to your bodily health is not that, what is? It also is not like “tooth paste” in cost or importance. I’m sorry. This is insulting. A tube of toothpaste costs a $1 at a discount store and will last for a long time. Birth control costs hundreds of dollars and doesn’t.

    The other things also cost very little. The prevention of pregnancy is in various ways more important than tooth decay even then. A health study was made that explained why this and other preventive services was added. Also, health insurance is not only for “unscheduled” expenses. Many people have “scheduled” health concerns. This isn’t hard.

    As to #4, the concern here is health care. People who can’t afford health care often cannot obtain it. They also often cannot pick and choose what jobs they obtain, especially in this economy, though certain things (like discrimination laws) are set up to avoid that sort of choice. So, yes, if you can’t pay the hundreds of dollars that might be necessary, you can’t obtain the birth control.

    As to “religious liberty,” I responded to your post as a whole & everything I said was not directly in refutation of what “you said.” Regardless, my reply shows how the employee’s “religious liberty” is harmed while the affect on the employer is trivial at best and if it IS a problem, so are the funding provided to them for schools etc. on comparable “advancing religion” grounds as to money.

    Birth control is not “unrelated” to the other things covered. For instance, childbirth is covered & is much more expensive. Also, pregnancy leads to various health related problems — this was a primary reason for the coverage. I think each one of these discussions should link to the announcement by the HHS explaining all of this. So, the underlining premise there is misguided. As to the cost, I would have to see big picture here. What other things should not be covered by health insurance?

    Finally, I still wonder about Medicaid. Since states allow abortions to be funded by Medicaid in ways that religious institution might oppose, do they think that it is a violation of “religious liberty” for such institutions to pay into the system? The contraceptive mandate is not a matter of payment directly. It is allowing the CHOICE among others. By paying Medicaid taxes, such institutions similarly pay others to be able to choose abortions.

  11. Joe says:

    “This one was designed to offend Catholics.”

    By passing something a vast majority of Catholics, including some nuns who agreed with the tweak during the (ongoing) attempt to balance concerns here, don’t think is wrong? If offending Catholics, as compared to the preventive health care results a medical study offered (along with seven other suggestions), is the goal, something most Catholics don’t use should have been provided.

    The pork example is as confused. The comparison there is some sort of food voucher that could be used for a diverse range of food choices per health and moral choices. The “difference” is that health care is covered by health insurance in this country, largely employer based, and food doesn’t cost anywhere as much as health costs.

    Since a medical study put forth contraceptives as but one of many options & the mandate was already in place in many states, including some fairly conservative, what actual credence is there for this anti-Catholic (why not anti-fundamentalist? Catholics aren’t the only people against contraceptives!) rationale?

    BB is ideologically against the PPACA as a whole & that’s fine as far as it goes. But, with respect, this sort of bogus conspiracy theorizing, whoever does it, is weak.

  12. PrometheeFeu says:

    @Caroline and Joe:

    By we, I mean those who consume and bear the cost of birth control. That’s most men and women in this country as I understand it. Bundling birth control in with health insurance means you pay for birth control with fixed monthly payments and your consumption choices have little impact on how much of the cost you bear.

    Birth control can be achieved in a wide variety of ways. You could use a birth control pill, condoms, abstinence, and a whole other panoply of technological means. Those different means have a wide variety of side effects, risks, effectiveness, practicality and cost. For instance, condoms are considered less practical by many, but they are cheaper than the birth control pill assuming certain levels of sexual activity. Additionally, you can pile them on to achieve even greater effectiveness at a higher cost. You could use the pill and condoms. Ideally, consumers would select the mix that is right for them given their willingness to pay and their preferences.

    But if birth control is provided through insurance, the cost is largely locked in. You pay a monthly premium which has been calculated based upon the pool in which you are and you then pay on top of that a fraction of the actual cost of the method you choose. So for instance, if you paid out of pocket, the pill might be 10x more than condoms given your level of sexual activity. But under the insurance plan, the pill might only be 2x more than condoms. It may very well be that at that level, you will choose the pill. Of course, you are still paying the full cost, it just so happens that you paid 80% of that cost through your monthly premium. But more importantly, this means the demand for the birth control pill rises. This means that the pressure on manufacturers to find ways to drop their prices is reduced. In the long run, the price will be higher than it otherwise would have been.

    In effect, the insurance plan becomes a big common where (partial) free-riders bring up the prices for everyone else.

    Now, I understand that you object by pointing at ability to pay. There may be people who cannot afford an optimal amount of birth control. I wholeheartedly support a combination of private and government charity to address this problem. But bundling contraception (and other predictable expenses which include a high degree of choice) with health insurance doesn’t make much sense. Insurance should do what it does best: risk management. That is way better than asking insurance to be a generalized payment system for healthcare: something it is very bad at.

  13. PrometheeFeu says:

    Woops, strike the last word in that sentence:

    In effect, the insurance plan becomes a big common where (partial) free-riders bring up the prices for everyone else.

  14. Joe says:

    What is the “cost” of birth control? Why is it singled out as compared to any number of other health related options, including various pills, procedures or whatnot that might be deemed non-compelling in such and such of case? What is the per-capita cost as compared to all these other things? Note that the Institute of Medicine suggested along with other options that “a review of existing guidelines and an assessment of the evidence on the effectiveness of different preventive services” determined this and other things would “further ensure women’s health and well-being.” Is the cost of pregnancy prevention — costs of the birth, health related costs for the children (and loss of employment and services) and negative affects to the health of the women — included?

    Birth control is “risk management.” It is a better risk to take various preventive options than not to do so, and some of these involve health related services. What “free riders” are you talking about? I don’t understand. The whole point of insurance is that you pay into the pool and a varied nature of services are provided, some needed by some, some by others. Employees here work for a salary and benefits and part of it is health care. Birth control is but one aspect that serves a certain segment. Men have certain things too, diabetics or those with some sort of condition that regulates blood pressure. Some of these things are “predictable expenses.” For instance, predictably, children need to see a doctor or someone has eye or dental check-ups. Predictably, certain things breakdown in cars and insurance can pay for it. Predictably certain things are needed for businesses or homes for which insurance might pay. Why is birth control so special here?

    Why is this as compared to other things something “charity” should entail? Now, if you think it is a bad idea in general to have insurance tied to employment, which is to be blunt how things will be done until we have a major change which we simply aren’t good at doing — change comes slowly thus the “thought experiment” line — fine. But, this specific thing as compared to any number of things, including Viagra btw, doesn’t seem worthy of selective targeting. I btw don’t know what “government charity” is supposed to mean. Employees pay for their health care. It is not “charity.” We are not talking Medicaid here. The idea that b/c is not “risk management” is nonsensical to me. I’m sorry.

  15. Joe says:

    One more thing .. in various cases, the services here are not merely scheduled, particularly as applied to morning after pills. But, if scheduled is a problem, again, many things covered by insurance is scheduled. There is no general principle on that front being applied by most critics here.

  16. prometheefeu says:


    I am speaking about birth control because that is the topic of this post. However, I do believe this logic applies to many other things. Why are so many people talking about it? Probably because some people with religious objections to the mandate have brought the matter to the attention of the public. I have a suspicion that you are insinuating that I have something against women controlling their reproductive cycle. As a frequent user of birth control, I am very much pro use of birth control.

    The free-riding problem is in the selection of birth control method. Making it simple, the birth control pill is more expensive than condoms. The pill is also more desirable because it is often considered more practical. So it is optimal for some people to use condoms and others to use the pill. For instance, the pill is probably overkill if you have sex once per month.

    If you pay out of pocket, you see the cost, balance it against the benefits and pick one method or another. However, if you use “insurance” to buy the pill, a substantial portion of the price is going to be born by the “insurance” pool. And so a tragedy of the commons scenario unfolds whereby a greater than optimal number of people buy the more expensive method of contraception which raises the premiums for everybody.

    Of course birth control is risk management. But bundling birth control with health insurance has the effects I mentioned above: it raises the cost of providing birth control above the efficient rate which I think we can all agree is a bad thing.

    Insurance isn’t a pool. That’s just the way the insurance company manages its risk. Insurance is a straightforward product. It converts a probabilistic future cost into a current known cost. Different customers with different risk profiles see themselves offered a different price. If customers with a different risk profile are mandated to pay the same price, it’s a transfer program from low-risk individuals to high-risk individuals.

    I don’t think birth control is particularly worth of charity. I simply meant that charity could resolve the problem of people’s lack of ability to pay in this as well as other cases. And government charity is simply net transfer payments towards the poor. I like a universal income scheme, but there are plenty other options such as tax credits, vouchers, free clinics, etc…

    And yes, I do think that having insurance tied to employment is a big problem which significantly raises healthcare costs. As for whether change is forthcoming or not, I don’t know. But the ACA was a major change on the same scale as eliminating the deduction for employer-provided healthcare and it appears to have happened. Anyways, mandates such as the required provision of birth control through health insurance plans only make things worst by paying for more and more with this weird health-care payment system we call “health insurance”.

  17. prometheefeu says:


    The financing of predictable expenses through health insurance plans is criticized by many people. John Cochrane and John Goodman are the two most prominent critiques I can think of. I’ve seen their writings on the topic praised by a number of other economists.

    The morning after pill and therapeutic uses of the birth control pill obviously don’t suffer from the same problems. There are other arguments that can be made regarding whether it is efficient to cover such relatively small expenses through insurance, but that is way off topic.

  18. Joe says:

    @ prometheefeu I asked why b/c is being singled out and this is taken as some sort of personal targeting, some “insinuation” etc. as to what a single person thinks. This is a dubious inference.

    The reply underlines that b/c is being selectively focused upon here, the general arguments made by the reply fairly atypical from my vantage point. Other choices in the health context have “religious liberty” connotations too. So, the reason why this particular one is getting so much focus is an interesting question, one that has various gender related explanations.

    It is noted that it is “optimal” for “some people” to use condoms. I don’t know how “use” is applied here, but a common sense application there would be that men “use” condoms. It is not as optimal for women, since they have to rely on the men to use them, while the pill they can control themselves. Also, it is unclear how much “overkill” it is to use the pill if you have sex once per month. A pill provides assurance, including when sex is unexpected. It is “insurance” for unexpected events, including sex after a party which might involve alcohol and so forth. Not having sex because no condom is available is quite possible here.

    Finally, the pill for many women has various useful other effects, such as regulating periods. The “some people” here if pills (or let’s say IUDs) is not available tends to favor men. This underlines why the mandate is seen as a matter of women’s equality. Since I disagree with the “overkill,” we differ on the analysis as cost/benefits here.

    You previously noted: “Insurance should do what it does best: risk management. That is way better than asking insurance to be a generalized payment system for healthcare: something it is very bad at.” You note “of course” birth control is risk management. Since I challenge the true “efficient rate” analysis and we seem to agree “of course” b/c is risk management, I think we should “ask insurance” to cover it.

    Insurance is a form of pool. Money is pooled together and in return various services are provided when needed. Insurance is various things, so you can discuss it in various ways.

    “Charity” involves giving people things gratis. The issue here is an employee benefit. It isn’t “charity” — they work and part of the result of their services are certain compensations, including benefit packages. Welfare might be deemed a form of “charity,” though even there many of the people who obtain the money put in funds via various types of taxes or even workfare programs. THIS isn’t “charity.”

    I will not comment on mega issues as to what best to do with insurance writ large since it is rather off topic. The report cited explains why b/c and other things were deemed compelling interests to be covered.

    The OP and Frederick Mark Gedicks at ACS Blog explain why it is not a violation of “religious liberty” as that term is applied under our law. The prevention of pregnancy is a “therapeutic use” of b/c in practice and since the average adult has sex and abstinence has been shown to be counterproductive here, the negative health effects of pregnancy as well as the side benefits of use of birth control [the mandate covers, btw, counseling and supply to men too] provide therapeutic use.

    The net benefits also doesn’t suggest to me some ‘free rider problem,’ especially given the women are paying for the service and it would require a complex listing of all the other services offered on insurance to determine if it is of special note in that department.

  19. prometheefeu says:

    This is all quite simple. In a free market, people who find that the risk-adjusted benefits of the pill outweigh the cost of the pill would purchase the pill and use it. Under the ACA, you are mandated by law to pay for part of the cost of the pill whether you use it or not. The price that you face when making your purchase decision is artificially deflated and so the pill will be consumed and paid for by people who do not find use of the pill to be worth its cost. Why would we want people who don’t find the cost of the pill to be worth its benefit to pay for and use it?

    “Covering” risk management products is not risk management in the same way that covering surgery is not itself surgery. Your car insurance does not cover your tire rotations even though your tire rotation is a risk management techniques. That’s simply because if your car insurance covered tire rotations, that would add another layer of complexity and cost without making your tire rotations easier, cheaper or more effective. Similarly, your health insurance should not pay for routine office visits, regular birth control, and all sorts of similar things which are mandated by state law and the ACA. Why? Because it doesn’t do anything positive. You still have to pay the full cost of the birth control (part in the premium and part at the pharamacy). Your birth control is not in any way cheaper or better because it was paid for that way instead of out of pocket to the contrary you now need to pay for the claims process in addition to paying for the birth control pill. Why would that be a good thing? (Not to mention that your insurance company might not cover the best birth control method for you. So you might end up paying for and receiving inferior birth control or paying for birth control you don’t use in your premium + paying for the birth control you need out of pocket.)

    The place where charity comes in is to address the real issue here that people refer to when they talk about this being a women’s rights issue. Some people are supposed to not have enough money to pay for birth control. The approach of the ACA is to make sure everyone is under an insurance plan and then to mandate that insurance plans must pay for birth control. Part of the cost of covering people is taken up by the Federal government (and part by a generous subsidy to insurance company whereby young healthy people are forced into plans the price of which significantly exceeds their average medical expenditures. A fact acknowledged at oral arguments in the ACA cases by General Verilli) and voila! Birth control for everybody. This is a ridiculous way to solve that problem. If some people are too poor, let’s give them money, vouchers or something similar. That solves the problem of poverty across the board rather than “solving” poverty-in-healthcare, poverty-in-education, poverty-in-whatever. Whether you call that charity, welfare, or something else isn’t really the important point.

    And both men and women use both the pill and condoms. Just because it’s my wife that ingests the pill does not mean I am not a user of its birth control effects and just because I’m the one who “wears” the condom does not mean my wife is not a user of its birth control and STD transmission mitigation effects.

  20. Brian says:

    It’s hard to argue the mandate is generally applicable when it effects only 2% of Employers due to the 50-Employee minimum for the requirement of providing health insurance.