Contraceptive Mandate Marches On
Sam Livingston and
Speaking with reporters
in December of 1993, President Clinton criticized the news media for paying
little attention to the Religious Freedom Restoration Act (RFRA), which he
had signed into law the previous month. The law, he said, “affected the
lives of people in a profound way.”
Two decades later, RFRA is anything but overlooked. This year it took
center stage in the Supreme Court’s most conspicuous case, Burwell v.
Hobby Lobby Stores, and next year it may well do the same.
The question before the court in Hobby Lobby was whether the
religious liberty granted by RFRA was sufficient to permit a for-profit
company to exclude from its employee insurance policy the comprehensive
contraception coverage mandated by the Affordable Care Act (ACA). The
court’s answer amounted to “Yes, but.”
It was yes to the extent that a “closely held” for-profit company that
demonstrated some measure of religious commitment could decline to provide
the coverage. But this was not because the government couldn’t
require the company’s female employees to be covered. It was because the
government did not use “the least restrictive means” to advance its
“compelling interest” in doing so.
In other words, the court
allowed for the possibility that a woman’s right to contraceptive coverage
might trump the right of a religious for-profit company—and possibly a
religious non-profit as well—to deny it to them.
The story of how these two rights came into being and into conflict is
as complicated as it is little known. Let’s begin with RFRA.
As of 1980s, the Supreme Court required claims that a law violated the
free exercise of religion to be judged according to “strict scrutiny”—that
is, the government had to prove that the law in question advanced a
compelling state interest in a narrowly tailored way and by the least
To be sure, the court was
generous in deferring to government assertions of compelling interest. In
1986, for example, it denied a Jewish Air Force officer’s right to wear a
yarmulke on the grounds that the military had a compelling interest in
maintaining its dress code. Nevertheless, the standard guaranteed serious
judicial attention to anyone claiming impairment of religious liberty by a
legal obligation or restriction.
Then, in 1990, the Supreme Court did away with the guarantee. The case
in question, Employment Division v. Smith, involved two members of
the Native American Church whom the Oregon Department of Human Resources
fired as drug counselors for using peyote as a sacrament. In a 5-4 decision
written by Justice Antonin Scalia, the court ruled that the state’s
prohibition of drug use by its drug counselors could not be challenged as a
violation of the First Amendment’s Free Exercise clause because it was a
“neutral law of general applicability”—i.e., a law that was not meant to
restrict a religious practice and applied to everyone.
Scalia did not deny that neutral laws of general applicability might
intrude on religious liberty. But rather than “courting anarchy” by letting
any and all religious objectors gain exemptions from laws if the government
couldn’t prove a bona fide compelling interest, he wanted them to take their
case to the people or their elected representatives. Indeed, it didn’t take
long for both the State of Oregon and the federal government to pass laws
protecting Native Americans from being sanctioned for the sacramental use of
provoked con-sternation throughout the community of church-state experts
associated with American religious bodies. By giving major responsibility
for enforcing the First Amendment’s guarantee of free exercise to
majoritarian decision-making, the court, they claimed, had all but gutted a
fundamental constitutional right.
So in the fall of 1993,
after a remarkably effective lobbying campaign by an unprecedented coalition
of religious and civil liberties groups, a nearly unanimous Congress passed
the Religious Freedom Restoration Act, which “restored” religious freedom by
requiring the Supreme Court to return to strict scrutiny when considering
Free Exercise cases.
As President Clinton said
in his signing statement, “[T]his act reverses the Supreme Court’s decision
Employment Division against Smith and reestablishes a standard that better
protects all Americans of all faiths in the exercise of their religion in a
way that I am convinced is far more consistent with the intent of the
Founders of this Nation than the Supreme Court decision.”
The court itself,
however, did not take kindly to the other branches of the federal government
telling it how to apply the Constitution. In Boerne v. Flores (1997),
a case challenging Texas’ historical preservation law, the court struck down
RFRA as an unconstitutional use of Congress’ enforcement powers. Writing for
a 6-3 majority, Justice Anthony Kennedy declared that only the court itself
could define a substantive constitutional right.
But because Boerne
dealt with a state law, there remained the possibility that RFRA would be
allowed to stand with respect to the federal government—and so it was. In
Gonzales v. O Centro Espirita Beneficente (2006), a drug use case
similar to Smith, the Supreme Court unanimously decided that RFRA
protected the right of a small religious group to imbibe tea made from an
Amazonian plant containing an hallucinogen regulated under Schedule I of the
Controlled Substances Act.
No longer was it courting
anarchy to permit religious objectors to challenge a neutral law of general
applicability, at least so long as that law was federal. Although the court
didn’t say as much, RFRA was now transformed from an instruction on how the
judiciary should apply the Constitution into a statutory limitation on
And thus it was that RFRA
became available to challenge, as a violation of religious liberty, a
neutral law of general applicability: the Affordable Care Act’s
And the mandate itself?
It also expresses a statutory right whose story begins in the fall of 1993.
That’s when the Health
Security Act, the Clinton Administration’s ambitious effort to ensure
comprehensive health coverage for all Americans, was introduced in Congress.
The bill included family planning services and contraceptive “devices” but,
despite covering prescription drugs generally, not contraceptive drugs. This
omission was noted by advocacy groups, who argued that equal treatment of
women demanded that contraceptive drugs be part of any comprehensive
prescription drug coverage plan.
Although the Health
Security Act failed to pass Congress, it led to increased federal regulatory
control over health insurance—for example, through the Health Insurance
Portability and Accountability Act of 1996, which created a precedent for
federal mandates to include specific types of benefits.
Meanwhile, the principle
of requiring contraceptive drugs to be included in prescription drug plans
began to take hold. It was advanced in the Equity in Prescription Insurance
and Coverage Act of 1997, which would have required private as well as
government-sponsored plans to cover all FDA-approved contraceptive drugs.
Although that bill did
not become law, in 1998 Congress sent ahead and mandated prescription
contraceptive coverage for the 1.2 million women covered by plans that
participated in the Federal Employees Health Benefits Program. Exceptions
were allowed for plan sponsors with religious objections to the coverage.
Then, in December of
2000, the U.S. Equal Employment Opportunity Commission (EEOC) ruled that the
failure of employers to include contraceptives in prescription drug coverage
constituted sex discrimination under Title VII of the 1964 Civil Rights Act,
which prohibits discrimination in the workplace. Pro-coverage activists
immediately went to court to enforce the ruling.
In Seattle, Jennifer
Erickson filed a class action on behalf of herself and the other female
employees covered by the comprehensive prescription drug benefit plan of the
Bartell Drug Company. In 2001, U.S. District Judge Robert S. Lasnik upheld
the EEOC ruling, writing in Erickson v. Bartell Drug Co., “Although
the plan covers almost all drugs and devices used by men, the exclusion of
prescription contraceptives creates a gaping hole in the coverage offered to
female employees, leaving a fundamental and immediate healthcare need
The decision, which was
never appealed, technically applied only to the case at hand, but it led a
large number of employers to add contraceptive drugs to their insurance
coverage. And by 2007, 27 states had jumped on the bandwagon, mandating
contraceptive coverage for all prescription drug plans under their
The state mandates
included provisions for religious exemptions ranging from California’s and
New York’s, which effectively limited them to churches and similar religious
bodies, to Illinois’, which permitted secular for-profit companies to apply.
In 2004 and 2006, the
and New York mandates were challenged in court by Catholic Charities and
other religious non-profits under the Free Exercise and Establishment
clauses of the First Amendment.
In each case, the state’s
highest court ruled against the plaintiffs, upholding the mandate and the
exemption in question. In each case, the court made it clear that these
were, as Smith prescribed, neutral laws of general applicability and
therefore proof against challenge on free exercise grounds. Because they
were state laws, the Religious Freedom Restoration Act did not apply.
Many of the religious
non-profits were nevertheless able to find a way to evade the mandate: by
Under the Employee
Retirement Income Security Act of 1974 (ERISA), states cannot regulate
employment-based insurance plans that establish self-insurance trusts to
cover the costs of coverage. The point is to enable employers to eliminate
the threat of conflicting or inconsistent state regulation.
To be sure, not all
employers can avail themselves of this opportunity, since a substantial
number of employees is necessary in order to create a big enough pool of
money to cover claims. Nevertheless, half of all Americans who have health
insurance through their employers are currently covered by ERISA trusts.
For sufficiently large
employers opposed to covering one or more FDA-approved
contraceptives—religious non-profits for the most part—the ERISA loophole
offered a way out. But although many proceeded to self-insure in order to
avoid state contraception mandates, the loophole may actually be illusory.
That’s because of Shaw
v. Delta Air Lines (1983), a case involving a disability benefits plan
that excluded disabilities related to pregnancy. New York State sought to
make Delta cover pregnancy disabilities, as required by its human rights
In a unanimous decision,
the Supreme Court decided that, under a 1978 amendment to Title VII called
the Pregnancy Discrimination Act (PDA), pregnancy had to be treated like any
other disability. In permitting enforcement of the New York law, the court
held that ERISA preemption did not apply to those state laws that were
consistent with and promoted the goals of Title VII. The justices didn’t
want companies to use ERISA to avoid state laws ensuring employees’ civil
rights—which is exactly what the religious non-profits were doing.
But then, in 2007, the
Eighth Circuit Court of Appeals held in In re Union Pacific Railroad
Employment Practices Litigation that a company which failed to include
contraceptive services for women in its comprehensive drug plan was not
in violation of Title VII. Ruling that the PDA had nothing to do with
contraception, the court found that Union Pacific actually treated the sexes
identically with respect to contraception coverage.
The ruling applied only
to the seven states of the Eight Circuit (Arkansas, Missouri, Iowa,
Nebraska, Minnesota, South Dakota, and North Dakota), however, and in 2009
the EEOC informed Belmont Abbey College, a small private Catholic
institution in North Carolina, that it was in violation of Title VII
(amended by the PDA) because its employee benefits plan did not provide
In any event, it was all
but inevitable that the Obama Administration would decide to mandate
contraceptive coverage for women as part of the Affordable Care Act. This
was not only because of the legal uncertainty regarding ERISA preemption and
the reach of the PDA. As a matter of public policy, most states and the
federal government had already acted to uphold the principle that gender
equality required such coverage. And as part of the ACA, Congress passed and
the president signed into law the Women’s Health Amendment, which created a
special category of free comprehensive preventive services specific to
The only question had to
do with the extent to which religious objectors would be allowed to opt out.
Initially, the administration—following the policies of California and New
York—only permitted religious bodies like churches to obtain exemptions. It
was assumed that, given their strictly religious identities, virtually all
employees would be members of those bodies who were committed to their
After vigorous objections
from Catholic and evangelical leaders that the exemption was too limited,
the administration eventually extended an “accommodation” to religious
non-profits such as the University of Notre Dame and the Little Sisters of
the Poor, an order of nuns that operates 30 nursing homes around the
By filling out a
government form stating their religious objections and sending it to their
insurer (or the insurance company administering their self-insurance trust),
such non-profits could exclude contraception coverage from their plans. The
insurance company would then have to provide the coverage itself, free of
This mechanism for
maintaining both the right of women to have comprehensive drug coverage and
the right of religious non-profits not to provide it was rejected by a
number of the non-profits, which went to court to claim that it would put
them in a position of triggering the coverage in a way that violated their
This position was given
short shrift by Judge Richard Posner of the Seventh Circuit Court of
Appeals, which in February denied Notre Dame an injunction against having to
comply with the mandate. Writing for the 2-1 majority, Posner declared,
“What makes this case and others like it involving the contraception
exemption and others like it paradoxical and virtually unprecedented is that
the beneficiaries of the religious exemption are claiming the exemption
process itself imposes a substantial burden on their religious faiths.”
Hobby Lobby, of
course, involved for-profit companies, which the ACA excluded from receiving
even the kind of religious accommodation that the non-profits could obtain.
The Supreme Court determined that, under some circumstances, for-profits
were entitled to opt out of the mandate—and, in the process, set the stage
for a showdown between the competing imperatives of RFRA-required religious
liberty and Title VII-secured gender equity.
Writing for the 5-4
majority, Justice Samuel Alito assumed—but pointedly did not concede—that
the government had a compelling interest in providing women with the full
range of contraceptive services. To fail the RFRA test, it was enough that
the ACA did not employ the least restrictive means to achieve it.
The government could
simply provide the coverage out of its own pocket, Alito wrote, but that was
not necessarily required. Readily available—and certainly less restrictive
than forcing the companies to provide it—was the accommodation for
Would that do the trick?
Again, Alito kept the court’s options open: “We do not decide today whether
an approach of this type complies with RFRA for purposes of all religious
claims,” he wrote.
The majority decision
drew a sharp dissent from Justice Ruth Bader Ginsburg, who saw the religious
liberty interests of the employers as insubstantial, and far outweighed by
those of their employees. “The exemption sought by Hobby Lobby and Conestoga
would override significant interests of the corporations’ employees and
covered dependents,” she wrote. “It would deny legions of women who do not
hold their employers’ beliefs access to contraceptive coverage that the ACA
would otherwise secure.”
Between Alito and
Ginsburg was Justice Anthony Kennedy, with a concurrence that showed why he
has so often been the swing vote on the Roberts court.
The government, he wrote,
did in fact have a compelling interest in providing contraceptive services:
“There are many medical conditions for which pregnancy is contraindicated.
It is important to confirm that a premise of the Court’s opinion is its
assumption that the HHS regulation here at issue furthers a legitimate and
compelling interest in the health of female employees.”
He also declared that the
arrangement for religious non-profits was indeed a valid means of assuring
both the religious liberty right and the contraception coverage right: “In
these cases the means to reconcile those two priorities are at hand in the
existing accommodation the Government has designed, identified, and used for
circumstances closely parallel to those presented here.”
A few days after handing
down Hobby Lobby, the court granted the Little Sisters of the Poor
and its fellow plaintiffs an injunction. Pending disposition of their case
by the Tenth Circuit, the unsigned order allowed them to convey their
religious objections to the Secretary of Health and Human Services rather
than obtaining an accommodation by filling out and submitting the required
government form to their insurance companies. But the order was not to be
“construed as an expression of the Court’s views on the merits.”
The court will express
its views on the merits soon, and probably next session. If Justice Kennedy
holds to his careful balancing of religious liberty and gender equity
imperatives, the non-profit accommodation—or a reasonable facsimile
thereof—will turn out to pass the RFRA test.