Academic journal article Northwestern University Law Review


Academic journal article Northwestern University Law Review


Article excerpt

ABSTRACT-Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.


Health care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.1 Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.2 This requirement-often called the "contraception mandate"-has generated a huge outcry, especially from the U.S. Catholic hierarchy.3 Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths-such as schools, hospitals, and social services providers-are not.4 It is the lack of an exemption for the latter organizations that has generated protests.

According to the United States Conference of Catholic Bishops (the "Bishops"), forcing their religiously affiliated institutions to facilitate access to contraception-the use of which clashes with fundamental tenets of the Catholic faith-violates their religious conscience.5 President Obama's proposed compromise, where insurance companies rather than the religious employers would pay for the coverage, did not assuage them: "The only complete solution to this religious liberty problem is for [the government] to rescind the mandate of these objectionable services."6 When the White House declined to revoke the contraception mandate, over forty Catholic dioceses, schools, and social services organizations filed lawsuits against the federal government. The complaints a?gue that making religiously affiliated organizations offer comprehensive insurance coverage contravenes, among other things, the Free Exercise Clause, the freedom of association guaranteed by the Free Speech Clause, and the Religious Freedom Restoration Act (RFRA).7

In fact, the contraception mandate violates none of these. As a neutral law of general applicability, it does not violate the Free Exercise Clause. Nor does it interfere with associational membership in violation of freedom of association. It does not trigger RFRA because it fails to qualify as a substantial burden on anyone's conscience and would survive strict scrutiny in any case. To start, most American Catholics do not consider the ban on contraception central to their faith,8 as a vast majority of Catholic women have ¿sed birth control.9 In addition, the claim that the contraception mandate illegally forces Catholic institutions to send a message that clashes with their fundamental beliefs overlooks the way that the genuine and independent choice of individuals to use contraception breaks the chain of causation, such that contraception use cannot be attributed to the religious entity. Finally, whatever burden "facilitating" prohibited conduct imposes, it is simply too attenuated to justify an exemption when balanced against the direct burden on women's autonomy and equality.


There is little basis for a constitutional free exercise claim. As its name indicates, the Free Exercise Clause protects the free exercise of religion.10 However, it only protects religious practices against discriminatory laws; Employment Division, Department of Human Resources v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause.^ A law is neutral as long asit does not intentionally single out a religion for disfavor,12 and it is generally applicable if it applies across the board." Given that' the mandate neither targets religiously affiliated institutions nor is riddled with exceptions, it meets the neutrality and general applicability requirements. …

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