Religious Employers’ Legal Challenges to Health Care Law’s Coverage of Contraception on Wobbly Legal Ground, Says BYU Law Professor

October 22, 2012

by Jeremy Leaming

The lawsuits lodged against the Affordable Care Act’s contraception coverage policy are resting on wobbly legal ground, says a Brigham Young University law school professor in a new ACS Issue Brief.

In “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate,” Frederick Mark Gedicks, a distinguished law professor at BYU, says the ACA’s requirement that employers ensure that their health care coverage provides access to contraceptives for women “strikes a careful and sensible balance of competing liberty interests by exempting religious persons and organizations who do not externalize the costs of their religious beliefs and practices onto others who do not share them.”

Gedicks notes that the contraception coverage policy also “exempts churches who largely employ and serve persons of their own faith, but not religious employers who hire and serve large numbers of employees who do not belong to the employer’s religion or who otherwise rejects its anti-contraception values.”

Earlier this year social conservatives attacked the ACA’s contraception coverage policy saying it would force them to trample their religious beliefs by providing free contraceptives to their employees. Even with the administration’s announcement that churches and religious orders would be exempt from the mandate for coverage of contraception, some religious employers continued to demand a broader exemption. When that did not occur religious employers began lodging lawsuits around the country on First Amendment grounds and on the claims that their rights pursuant to the Religious Freedom Restoration Act (RFRA) would be violated.

One of the groups challenging the coverage of contraception is the for-profit company Hobby Lobby, an arts and crafts chain store located in mostly strip malls in 41 states. Though Hobby Lobby is not affiliated with a church or religious order, its CEO David Green says that providing access to contraceptives for the stores’ women employees violates the company’s religious-based opposition to “abortion causing drugs.”

But Gedicks writes that the religious-based challengers have misconstrued the law on religious exemptions. The law, he says is constitutionally sound because it is a “religiously neutral, generally applicable law that does not discriminate against religious employers, does not entangle courts or government generally in disputes about theology or internal church governance, and does not ‘substantially burden’ religious exercise.”

The professor also details why RFRA is unlikely to prove helpful to the religious employers’ cases against the health care policy. RFRA requires the federal government to show a compelling interest to enforce laws of general applicability that substantially burden the free exercise of religion.

Gedicks writes that the mandate of contraception coverage does not substantially burden an employer’s “ability to oppose contraception, because it neither requires the employer to use contraceptives, nor to endorse, encourage, or pay any meaningful amount for such use.’

He also notes that the health care law “provides important public services and protects considerable government interests, notably the enhancement of women’s health and the elimination of gender inequities.”

Gedicks concludes, in part, “Religious liberty simply does not entail a right in religious employers to force their employees to observe and to pay the costs of anti-contraception beliefs that the employees do not share.”