ACA’s Contraception Mandate Likely Headed to the Supreme Court

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In 2010 Congress passed the Patient Protection and Affordable Care Act (ACA). The ACA was passed in order to increase overall heath care access and preventative health care services to millions of Americans. One such preventive health care requirement is that all private employer and group sponsored health insurance plans must include all FDA approved contraception at no cost to the employee or individual.

While the ACA provides for a religious employer exception, religious for-profit employers are not exempted and must provide birth control coverage for their employees. Religious leaders and private business owners argue that the definition of a “religious employer” is too narrow and therefore limits their free exercise of religion.

Over the past year, The Beckett Fund, a nonprofit and public-interest group dedicated to the free expression of all faiths, has filed over 53 lawsuits against the Department of Health and Human Services claiming that the contraception mandate violates their religious freedom under the Religious Free Restoration Act (RFRA) and the First Amendment. The Free Exercise Clause of the First Amendment states that Congress may not make a law “prohibiting the free exercise” of religion. In 1990 the Supreme Court held that free exercise cases should be reviewed under rational basis review and not strict scrutiny. In response to this lower bar, Congress passed RFRA in 1993, prohibiting the government from imposing a substantial burden on the free exercise of religion unless there is a compelling government interest and the government imposes the law in the least restrictive way possible. Different Circuits have come to different conclusions as to whether or not the contraception mandate “substantially burdens” employers and if preventative care is a “compelling governmental interest.”

As the Christian Science Monitor notes, legal scholars believe that the contraception mandate is heading to the Supreme Court because of a recent split among the Circuit Courts as to whether the contraception mandate imposes a substantial burden upon a private employer’s free exercise of religion. Government attorneys for the Department of Justice argue that a private employer cannot exercise religion, and rely heavily on Justice Scalia’s opinion in Lyng v. Northwest Indian Cemetery Protective Association where he stated, “Any society would be courting anarchy,” if people were free to ignore a “valid and neutral law … on the ground that [it] prescribes conduct that his religion proscribes.”

Additionally, women’s health advocates believe (PDF) that the Beckett Fund cases are unlikely to succeed, as the health care law is a facially neutral law that is generally applicable. Health care advocates also contend that RFRA should not control because “neither providing health insurance, nor engaging in sexual intercourse without contraception, constitute religious exercise.” Ultimately, this issue is likely to be hashed out in the Supreme Court. In the meantime, female employees at Dominoes, Hobby Lobby and religious universities are unable to receive free contraception through their insurance plans.

Posted by Melanie A. Stratton Lopez on Sun. April 7, 2013 8:29 AM
Categories: Freedom of Religion

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