"With Religious Liberty for All: A Defense of the Affordable Care Act's Contraception Coverage Mandate"

By Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University School of Law

Abstract:

The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One's religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

That the free exercise of religion is fundamental constitutional right is not in doubt. But access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men.

Contraception nevertheless remains a significant expense beyond the reach of many women who lack insurance coverage or whose health insurance plans do not cover contraceptives or do so only with substantial patient cost-sharing. This is a financial obstacle to the use of contraception by working-class and lower-income women, and simple economics suggests that women of all but the highest income levels are likely to use contraceptives more often and more consistently when they can obtain them at no cost.

The rhetoric of those challenging the mandate charges federal violation of the free exercise rights of religious employers, usually without mentioning the substantial federal interests in protecting the religious liberty and enlarging the access to contraceptives of employees who do not share their employer’s religious values. The contraception mandate strikes a sensible balance of these competing liberty interests by generally exempting only religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.

The contraception mandate does not violate the rights of religious employers under either the Religion Clauses of the First Amendment or the Religious Freedom Restoration Act. The mandate is a “religiously neutral, generally applicable” law that does not discriminate against religious employers, does not entangle government in disputes about theology or internal church governance, and does not “substantially” burden the free exercise of religion by nonexempt religious employers. The mandate is additionally justified as the least restrictive means of protecting compelling government interests in public health and gender equity. Finally, while all these conclusions apply fully to religious nonprofit organizations, they apply with special force to religious owners of for-profit businesses operating in commercial markets.

Paper downloadable here.