By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School
John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.
1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.
Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.