State Law Contraception Mandates and Post-Hobby Lobby Federalism

Susan is correct, of course, that several states (26 by statute and two by administrative ruling according to this from the NCSL; see also this summary from the Guttmacher Institute) require that employers include contraception in prescription drug benefit plans. While some include broad religious exemptions (eg, Texas), others provide no exemption at all (eg, Iowa) or, as in California and NY, an exemption limited in the same terms as the HHS mandate (which I wrote about a couple years ago here). There are ways around such state-law mandates, however, most notably in some circumstances through self-insurance, and part of the impetus for the HHS mandate under the ACA was to require coverage in all employer-provided plans (other than the diminishing grandfathered few or those entitled to the religious exemption) as well as those in the 22 states without a state-law mandate.

Because RFRA does not apply to the states under Boerne, challenges to state law mandates have to rely directly on the Free Exercise Clause of the First Amendment (with little chance of success, of course), state constitutional free exercise clauses, or state RFRAs. Such challenges--including the challenge (cert petition here) I was part of as an associate at Williams & Connolly ten years ago to the California mandate--have been unsuccessful. (One issue from that petititon that I think has never been fully explored is whether the carving up of what is a sufficiently "religious" institution to qualify for for an exemption poses Larson v. Valente Establishment Clause problems, but that has garnered about as much interest from courts as the argument on the other side that Caldor v. Thornton from the same era implies a broad rule that accommodations raise Establishment Clause problems.) Thus, the point made in this LA Times story that not much will change for many employees post-Hobby Lobby and the likely push in some of the remaining 22 states to enact contraceptive mandates.

Perhaps there are some important doctrinal Justice Kennedy-syle federalism-as-protecting-liberty reasons for this post-Hobby Lobby state of affairs (Howard Wasserman raises similar issues here), as well as an example of Rick Hills's "Westphalian" strategy of substituting conflicts over jurisdiction for conflicts over deeply contested moral questions. Justice Kennedy wrote the decision for the Court in Boerne holding that RFRA was not a congruent and proportional remedy for any state (or local government) religious free exercise violations of § 1 of the Fourteenth Amendment (a then much-criticized narrowing of Congress's § 5 power--times change). The federal government remains limited by RFRA in what it can impose on the nation by statute or regulation (see O Centro and Hobby Lobby). The states, however, can ratchet up or down levels of free exercise protection through interpretation of their state constitutional provisions, enacting state RFRAs, or crafting exemptions (or burdens, see Locke v. Davey), free from federal constitutional (see Smith, which Justice Kennedy joined) or statutory (see Boerne) demands.