The Contraceptive Coverage Mandate and the “War on Religion” – Part III

February 21, 2013

Insurance LawAlthough the lawsuits challenging the contraceptive coverage mandate all raise free exercise of religion issues, they seek recovery under the Religious Freedom Restoration Act of 1993 (“RFRA”), which affords broader religious rights than the First Amendment of the United States Constitution. Under RFRA, religion is something the government must accommodate, rather than merely refrain from attacking. Specifically, the RFRA  forbids the government from “substantially burden[ing] a person’s exercise of religion” unless the government can “demonstrate[ ] that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” .

Substantial Burden

Assuming at the outset that RFRA is a constitutional exercise of Congressional authority, then in order to state a prima facie case under RFRA, plaintiffs must allege and prove a substantial burden on their religious exercise. The courts, however, are widely divided on what qualifies as a substantial burden. Some courts simply assume that the burden is substantial once it is established that the plaintiff is making a claim based on religious belief.  Other courts have focused on the fact that the contraceptive mandate does not require employers to use, or even condone the use of, contraceptives, and ruled that requiring the employer to facilitate individual employees’s ability to do so does not substantially burden the employer’s religious practices and beliefs.

On Whose Religious Beliefs

The dispositive issue is really this: Whose religious beliefs must the court consider? If any employer—whether constituted a corporation or cognizable as an individual—is allowed to deprive an employee of a statutorily mandated benefit on the ground that the benefit violates the employer’s religious beliefs, the beliefs of its employees being compromised in order to accommodate the beliefs of the employer.

Health care legislation is particularly susceptible to religion-based objections. This is because for many people religion is not just a set of abstract beliefs, but a way of life. Religion is the touchstone that guides their views on the morality of abortion, blood transfusions, organ transplantation, in vitro fertilization,  genetic screening, gene therapy, stem cell therapies, preventative and remedial treatment for sexually-transmitted diseases, withdrawal of life-sustaining medical treatment, and even the provision of medical treatment itself. If the RFRA entitles the owners of a corporation to exclude coverage for contraceptive care based on their religious beliefs, coverage for other treatments and procedures could also be excluded on the same basis.

We will discuss the issues raised in our posts on the contraceptive mandate in a Webinar sponsored by West Legal Ed Center on March 18, 2013.