The Contraception Mandate Part II

In my last post, I argued that the requirement that religiously affiliated organizations include contraception in their health insurance plans does not violate the Free Exercise Clause. That’s not such a hard argument to make given the Employment Division v. Smith rule that neutral laws of general applicability are constitutional, no matter what kind of burden they may create for religious practices.

The Religious Freedom Restoration Act (RFRA), on the other hand, is easier to violate. RFRA was passed in reaction to Employment Division v. Smith. Congress wanted to restore the more demanding (at least on paper) pre-Smith test for religious liberty claims. The Supreme Court struck down RFRA  as applied to the states but not as applied to the federal government. Under RFRA, a federal law cannot impose a substantial burden on a person’s exercise of religion unless it passes strict scrutiny.

Saving the question of whether the contraception mandate imposes a substantial burden for another post, would it pass strict scrutiny? Does the contraception mandate advance a compelling state interest in a narrowly tailored way? It is not hard to come up with compelling reasons why women who do not want to become pregnant should have access to contraception. Women’s ability to control their reproduction is essential to their wellbeing, their bodily integrity, and their ability to participate as equals in the social, economic, and political life of the nation. In fact, the failure to cover contraception may well amount to sex discrimination if a health insurance plan covers all basic preventive care except for pregnancy-related preventive care like contraception. (While pregnancy discrimination is not considered sex discrimination for equal protection purposes thanks to Geduldig v. Aiello, it is sex discrimination for Title VII purposes thanks to the Pregnancy Discrimination Act.) Promoting women’s health, liberty, equality, and equal access to health care are all compelling state interests.

Nevertheless, at least one court has concluded that the contraception mandate was not motivated by a compelling interest because it contains too many exceptions, such as the ones for grandfathered plans and small employers. So, while the court acknowledged that “the promotion of public health” is generally a compelling state interest, it held that “any such argument is undermined by the existence of numerous exceptions to the preventive care coverage mandate. . . . A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” I disagree. The number of exceptions might matter if there were some question about whether the state’s interest really was compelling or not. If we are not sure about the importance of uniform appearance among police officers, numerous exceptions to grooming requirements might lead to the conclusion that it is not as important as the state claims. However, such exceptions should not matter when the state’s goals have long been recognized as compelling — and surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests.

Perhaps, then, it could be argued that the law is not narrowly tailored. How strict the tailoring must be under RFRA in not clear. If RFRA is meant to reinstate the pre-Smith test as practiced, then it is not very demanding, since the Supreme Court rarely found that laws failed strict scrutiny in Free Exercise Clause challenges. In any case, one argument that should be rejected is that the law is not sufficiently tailored because the government could provide contraception instead. But that can’t be right. Imagine a bookstore that refused admittance to Hispanics. Or imagine an employer whose insurance covered cancer screenings for white employees but not Asian ones. Now imagine the bookstore or employer arguing that a law banning race discrimination in places of public accommodation or in the provision of employment benefits fails strict scrutiny because the state could sell the books or provide the benefits instead. Such a claim is a distortion of strict scrutiny and should fail.

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5 Responses

  1. Joe says:

    On RFRA, the case U.S. v. Lee (Amish/tax policy) seems a compelling answer, since that involved a pre-Oregon v. Smith case & particularly since the PPACA was upheld on tax grounds, this rule in effect is a sort of tax on employers. The law there ALSO allowed certain exemptions. Finally, though I understand the legal logic involved, the argument seems ironic — oh? so you want it more strict? Fine.

    As to “surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests” … some seem not to think so, comparing this to toothpaste or implying those who use b/c are [see Ms. Fluke].

    As Lee noted:

    “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security [or this provision] taxes to an employer operates to impose the employer’s religious faith on the employees.”

    The ministerial case recently decided dealt with choice of ministers. This rule doesn’t address that but to the more “public” nature of things, which can be regulated by general applicable laws to advance compelling state interests. The particular law is also narrowly tailored.

  2. PrometheeFeu says:


    Couldn’t the abundance of exceptions go to the third prong of the test if the mandate is riddled with holes so as to render it ineffective?

  3. Joe says:

    Conceivably it can be so riddle w/holes, but doesn’t seem to be the case here. It might be useful to know how large the exceptions are, long term. What percentage?

  4. PrometheeFeu says:


    I would tend to agree.

  5. Chris says:

    The existence of exceptions can be relevant in one of two ways. The first, which Caroline focuses on here, is whether any of the interests touched by the law are in fact compelling ones. The existence of exceptions could show, for instance, that the interest at stake is not compelling.

    The second, which I don’t think Caroline’s post addresses, is whether a law is actually designed to advance the compelling interests it may further. The existence of exceptions might show, for instance, that a law which furthers a privacy interest does so only incidentally and was not designed for the purpose of furthering that interest, in which case the application of the law in particular instances would more readily give way to competing interests.

    This second way in which exceptions are relevant is what prevents the rule from collapsing in on itself. As I read Caroline’s post, its logic would require us to rewrite the third prong to say that exceptions are only relevant when we’re not *really* sure the interest at stake is a compelling one. I’m not aware of any cases that apply the test in that manner, though I stand ready to be corrected.

    In any event, the challengers to the contraception mandate seem to be making an argument based on the second way in which exceptions are relevant: The exceptions are evidence that the mandate incidentally, and not purposely, furthers gender equality, and therefore should give way to their genuine interests in religious liberty.

    But I haven’t read their briefs, so I may be putting words in their mouths.