Litigation challenging the PPACA contraception mandate continues, and last week’s decision by the U.S. District Court for the Eastern District of Missouri in O’Brien v. HHS brings the total number of decisions on the merits to two (three cases – Nebraska v. Sebelius, Wheaton College v. Sebelius, and Belmont Abbey v. Sebelius – have already been dismissed for lack of standing).
Judge Carol Jackson’s opinion dismisses all the plaintiffs’ claims, but focuses primarily on the Religious Freedom and Restoration Act (RFRA) claim. RFRA, which was passed by Congress in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, applies a stricter standard of scrutiny to burdens on religious exercise than is constitutionally required under Smith. A plaintiff who can demonstrate that his freedom of religious exercise is being substantially burdened by a law will prevail unless the government can prove that the law serves a compelling state interest using the least restrictive means possible.
With respect to O’Brien’s RFRA claim, the District Court concluded that requiring a corporate employer to cover contraception in its health insurance plan does not impose a substantial burden on the entity’s right to religious exercise. Or rather, the entity’s hypothetical right to religious exercise – the District Court assumed for the sake of argument that a secular corporation can, in fact, “exercise” a religion. The court concluded, however, that whatever burdens exist on the plaintiffs’ right of free exercise, those burdens are “too attenuated to state a claim for relief.” Unlike other cases where plaintiffs have been able to demonstrate substantial burdens on religion, the PPACA contraception mandate would not prevent the plaintiffs in O’Brien from keeping the Sabbath, raising a family according to Scripture, eschewing contraception, or expressing an opinion to employees. Rather, the mandate merely requires indirect financial support of a practice with which the plaintiffs disagree – no different, the court suggests, than paying a salary to an employee who, through her own free will, chooses to purchase an objectionable product. While the court did not draw this connection directly, this reasoning is similar in kind to the reasoning used by courts in rejecting claims of conscientious objection by taxpayers.
The District Court’s decision in O’Brien is particularly noteworthy because it emphasizes an issue that was addressed only in passing by the only other court to have reached a decision on the merits. In its July 27 grant of a preliminary injunction in Newland v. Sebelius, the District Court of Colorado found that the plaintiffs’ RFRA claim was likely to succeed because the state could not demonstrate a compelling interest or least restrictive means. The opinion by Judge John Kane, however, essentially punted on the issue of whether the plaintiffs had demonstrated a substantial burden on religious exercise. The opinion disposed of the question in a single paragraph, noting that the questions of whether a corporation could exercise religion – and, if so, whether the contraceptive mandate substantially burdens this exercise – “pose difficult questions of first impression” and “merit more deliberative investigation.” In contrast, the Missouri District Court decision devotes six pages to the substantial burden issue; in my opinion, this is the better approach. Demonstrating a substantial burden on religious exercise is a prerequisite for bringing a RFRA or a free exercise claim. In merely posing a series of rhetorical questions about corporate exercise of religion rather than reaching a conclusion on this issue, the Colorado District Court’s analysis of plaintiff’s likelihood to succeed on the merits was incomplete.
So what do you think? Before even analyzing the compelling interest and least restrictive means standards, have the plaintiffs in these cases demonstrated that the PPACA contraception mandate imposes a substantial burden on their freedom of religious exercise?