President Obama's recent modification of the Health and Human Services' Department's contraception mandate has not satisfied most opponents. Although the details are not yet specified, the change seems to boil down to this: initially, the policy required religious institutions to provide contraceptives to their employees. Now the policy only requires them to provide insurance, which will provide the contraceptives. If you do not see much difference between these two things, you are not alone. Opposition groups, most prominently the US Conference of Catholic Bishops, are hoping for a solution that does more to protect consciences.
Bishop William Lori, for instance, said that "[w]e think there needs to be a legislative fix to protect our religious liberties." Though not mentioned very often, there is, in fact, already a legislative "fix" regarding religious liberty, and it makes it likely that neither the original nor the modified mandate would hold up to judicial scrutiny. That legislative fix is the Religious Freedom and Restoration Act (RFRA).
Congress passed the RFRA in the early 1990s, in response to the Supreme Court's decision in Employment Division v. Smith. In Smith, the Court ruled that "neutrally applicable" laws need not contain religious exemptions. So, if Native Americans were using peyote in their religious rituals, as they were, and peyote was banned by the state of Oregon, as it was, Native Americans were simply out of luck. In one blow, the Supreme Court had radically altered the common understanding of the Free Exercise Clause.
This result galvanized political groups on both sides. Organizations as diverse as the ACLU and the National Association of Evangelicals supported congressional attempts to overturn this holding. The RFRA was the result of their efforts. The House was unanimous in its support of the law and the Senate nearly so as well.
The RFRA mandates that governments cannot substantially burden someone's religious beliefs even with regard to neutrally applicable laws. The only exception to this rule is if such a law meets two stringent requirements, it must be directed toward a compelling government interest and the government must use the least restrictive means of achieving that interest.
The RFRA is not mentioned much anymore because the Supreme Court held that it exceeded the federal government's Fourteenth Amendment powers as applied to the states in City of Boerne v. Flores. Given that the main purpose of the law was to keep state governments in line, the Court largely rendered it toothless through its holding. The key point for this debate, though, is that the Court only mostly incapacitated the law. As applied to the federal government, the RFRA is still good law.
This is where the "legislative" solution comes into play. Because the RFRA is still binding on the federal government, the federal government must still avoid substantially burdening religious faith unless it can prove that the burden is justified by a compelling interest and that no less intrusive method can be used.
The original contraception mandate showed little promise of accomplishing that. Even if one is inclined to believe that providing access to contraception might be a compelling government interest, the number of exemptions that there have been disfavors this view. Employers with fewer than fifty employees have an exemption. Certain "grandfathered" plans will be exempt. The mandate also includes an exemption for churches as long as they primarily employ people of their own religious faith. One has to wonder how compelling the government's interest can be when it exempts multitudes of small businesses, the vast majority of churches and allows many employers to keep doing whatever it was that they were doing prior to the mandate.
The second problem is intrusiveness. Again, the original contraception mandate seems weak. There are almost certainly ways of providing these drugs and services without forcing religious institutions to break their moral precepts. At the very least, the government itself could provide the services, or the money for the services, directly to those specific groups it is trying to reach through this mandate.
Now, one can make the argument that even if this is not a compelling government interest and even if there are ways of accomplishing its purpose that do not involve burdens on religious rights, the RFRA still does not apply because this mandate is not a "substantial" burden on religious citizens. People of faith find this argument hard to understand. The government is actively requiring religious institutions to provide drugs and services even if they find them morally repugnant—what could be considered more of a substantial burden on a religious individual than requiring him to violate his religion?
Nevertheless, this argument is probably stronger now that President Obama has pushed the issue back one layer: if religious institutions only have to provide coverage where insurers are handing out the pills, how big of a burden can that be?
There is an underlying hint of cynicism to this argument, which obscures the reality. The idea seems to be that Catholic organizations and other religious institutions do not really care about contraception, rather they just do not want to pay for it, they do not want their power infringed upon or some other ulterior motive drives them.
This is where the critics are simply mistaken. Certain religious institutions, mainly Catholic, actually do believe that the use of contraception is morally wrong. Even more religious institutions believe that the use of abortifacient contraceptives (the mandate includes at least one contraceptive that can cause abortion) is morally wrong. No one is complaining about these regulations because they are afraid they might have to pay for a box of pills. The complaint is about the type of pills in the box. That complaint does not change just because religious institutions are providing these substances through an intermediate insurance company. If you were responsible for putting a gun into the hand of a suicidal friend, it would make little moral difference whether you did it directly or whether you employed the postal service to do it for you.
Legally, the federal courts should understand this, and should interpret the RFRA to hold this mandate inapplicable to religious institutions, as this was Congress' clear intent. Almost every time the Supreme Court has allowed a restriction of religious freedom, Congress has swiftly stepped in to right the wrong. In the 1980s, when the Supreme Court allowed the military to ban yarmulkes from uniforms, Congress intervened through adding a provision to the annual National Defense Authorization Act, which provided that, "a member of the armed forces may wear an item of religious apparel while wearing the uniform of the member's armed force." In the late 1990s, when the Supreme Court allowed the city of Boerne to keep a church from expanding, Congress intervened with the Religious Land Use and Institutionalized Persons Act. And in the early 1990s, when the Supreme Court allowed governments to interfere with an individual's religious practices, Congress passed the RFRA. Congress' intent has been clear: to protect the religious practices of those in the minority. Certainly, those who believe contraception is immoral are in the minority. But the widespread acceptance of contraception should not obscure the fact that, even with the recent changes, the Obama administration is attempting to force individuals belonging to a minority to participate in acts that violate the fundamental tenets of their religion. This is certainly a "substantial" burden.
Unless the Obama administration can prove that this is a compelling interest that can be achieved in no other way, the mandate should be struck down as it applies to religious institutions. And in this respect, the president's recent alterations have not changed anything at all.
Stephen Petrany, is a first-year student at Yale Law School and a graduate of the University of Pittsburgh. He is also involved with the Capital Assistance Project, an organization that provides support for lawyers defending capital cases.
Suggested citation: Stephen Petrany, Universal Contraception Access and Religious Freedom, JURIST - Dateline, Feb. 15, 2012, http://jurist.org/dateline/2012/02/stephen-petrany-contraception.php.
This article was prepared for publication by Elizabeth Hand, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org