By Monica Z. Austin, SPHR
The Patient Protection and Affordable Care Act, commonly called the Affordable Care Act or “ObamaCare,” requires most US companies to offer their employees insurance coverage for contraceptives at no extra charge. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including 4 methods that may have the effect of preventing an already fertilized egg from further development. Religious employers, such as churches, are exempt from the contraceptive mandate.
The owners of Hobby Lobby and Conestoga Wood Specialties Corp. sued the federal government, arguing that in their view, life begins at conception, and that the Act forces them to violate their religion by facilitating access to drugs or devices that operate after conception. On June 30, 2014, the Supreme Court ruled, by a 5-4 decision, that the contraceptive mandate, as applied to closely held corporations, violates the Religious Freedom Restoration Act (“RFRA”).
Please find the 95-page Supreme Court opinion here: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
The RFRA was enacted in 1993 and prohibits the government from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government demonstrates 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. The RFRA does not create a blanket protection for any person who claims that a federal law burdens a sincerely held belief. That claim is merely the first step in a court’s analysis. Once a person establishes that the government action in question burdens his exercise of religion, the action still does not violate the RFRA if the government can prove both of the following: (1) it has a compelling interest in enforcing the law against the person, and (2) there is no alternate way to advance that interest without equally burdening the person’s religious liberty.
With regard to the contraceptive mandate, the Court assumed that the government met the compelling interest element, finding it unnecessary to decide the issue. The Court then focused on the second prong of the test, holding that the government failed to establish that it had employed the least restrictive means of furthering its compelling interest. In other words, the government failed to show that it lacked other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.
The Court pointed out that the government could, for example, assume the cost of providing the 4 contraceptive methods to those women unable to obtain them due to their employers’ religious objections. Alternatively, the Court noted that where there are such objections, the government could extend accommodations that have already been granted to religious nonprofit organizations. Such accommodations would serve the government’s interest without infringing upon religious beliefs.
Neither Hobby Lobby, nor any of the plaintiffs in related cases, sued to prevent women from accessing or using contraceptives, and nothing in the Supreme Court’s opinion has led to that outcome. No employer could ever use the RFRA to prevent an employee from using contraceptives; the Supreme Court has previously established that the Constitution provides a right to use contraceptives. The ruling of the Court was much more narrow, as stated in the Court’s own words: “The contraceptive mandate, as applied to closely held corporations, violates RFRA.” The ball is now in the government’s court to devise a way to achieve its desired goal using the least restrictive means available.
This article does not reflect the opinions of The Hopkins Group.