Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, January 17, 2014

A baseline problem for the "burden on employees" argument against RFRA-based exemptions from the contraceptives mandate

Both the the Washington Post op-ed and HLR student note recently linked here include the assertion that exempting employers from compliance with the contraceptives mandate imposes a burden on employees. This assertion presupposes a baseline entitlement to such coverage. Unless an entitlement to such coverage is built into the baseline, the absence of such coverage is not a burden. But if RFRA requires an exemption to the contraceptives coverage mandate, then the supposed baseline entitlement is illegal. And if the baseline entitlement is illegal, what is the argument for using it as one’s baseline?   

The contraceptives coverage mandate is a product of regulations implementing Congress’s statutory commands. Importantly, the ACA does not supply the only statutory requirements that the government entities that drew up the contraceptives coverage mandate and its three-tiered scheme for religious objectors were bound to follow. These government entities were equally obligated to follow RFRA as well. If their regulatory imposition of the coverage mandate on religiously objecting employers violates RFRA, then the regulations that purported to create the entitlement were invalid. And invalid regulations should not be taken to supply the baseline for deciding what counts as a burden in legal analysis.


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