SCOTUS and the Contraceptives Coverage Mandate

As everyone and their brother expected, SCOTUS has just decided to take up two cases challenging the contraceptives coverage mandate: Hobby Lobby, in which the 10th Circuit ruled in favor of the religiously-objecting (but secular, for-profit) employer, and Conestoga, in which the 3rd Circuit went the other direction, maintaining that “for-profit, secular corporations cannot engage in religious exercise.”

I think the First Amendment piece of this is pretty much open-and-shut: the requirement that employers offer health plans that provide contraceptives coverage free of charge is pretty clearly neutral and generally applicable.  Arguments around the Religious Freedom Restoration Act are much more interesting.  For our non-lawyer readers, the basic idea behind RFRA is that the federal government may not (1) substantially burden the right to free exercise of religion, unless it does so (a) in furtherance of a compelling interest, and (2) using the least restrictive means.  This is a high hurdle, otherwise known as strict scrutiny.

You can see several clear decision points under the RFRA analysis, and pretty much any one of them could go either way:

Do for-profit corporations have a right to free exercise?

As a threshold matter, RFRA offers protection only to those entities with free exercise rights.  Citizens United tells us that “corporations are people, my friend.”  So if that analysis applies to both the First Amendment’s free speech rights and free exercise rights, then corporations can at least pass go.  On the other hand, some courts have maintained that religion can only be exercised by individuals or religious organizations, such that RFRA would not apply to secular, for-profit corporations.

Does the contraceptives mandate impose a substantial burden? 

If RFRA applies, the next question is whether the contraceptives coverage requirement substantially burdens a secular employer’s free exercise rights – magnitude counts here. On this question, you might conceive of the mandate as no different from a tax, and we don’t let people out of their taxes simply because they might (religiously or otherwise) object to how the money will be used.  Or similarly, the mandate might look no different than allowing employees to use their salaries in all sorts of ways that their employers might find objectionable, which is of course allowed within the bounds of legality.  In this vein, the argument goes that employers themselves can of course still choose not to use contraceptives if they find them objectionable, and there is no substantial burden from having one’s money circuitously flow to support the possible conduct of others, i.e., from offering a health plan that covers contraceptives that employees may or may not use.  But on the flip side, objecting employers point out that what is being asked of them is active facilitation of access to services that they find troublesome through the selection and provision of health coverage, which they maintain involves greater complicity than payment of taxes or salaries that others go on to spend.

Is the government’s interest compelling?

If the Court determines that for-profit, secular corporations are protected by RFRA and substantially burdened by the contraceptives mandate, it will have to evaluate the government’s interest in imposing the mandate.  The government has articulated public health and equality reasons, including the fact that nearly all US women have relied on contraceptives at some point and more than half of women between 18-34 have struggled to afford them; unintended pregnancies or pregnancies that are too close together have worse outcomes; pregnancy is contraindicated in some women; women disproportionately bear the costs of contraception; and access to contraception will help protect women’s opportunity for equal participation in the workforce. However, the government may have undercut its own arguments by virtue of its extensive prior efforts toward compromise, offering exemptions and accommodations to certain types of religious organizations.  If it the mandate doesn’t apply across the board, the argument goes, how compelling is the government’s interest really?

Are there less restrictive alternatives?

This is the last stop.  Even if the government has a compelling interest in the contraceptives mandate, RFRA will protect objecting employers if the government could have taken a different approach that would not have imposed on their free exercise rights (or not imposed as substantially).  The government, of course, has articulated that alternatives would be infeasible, less effective, and/or more complicated. Then again, depending on what counts as a realistic, legitimate alternative, clearly some exist: a national single payer healthcare scheme that cuts employers out of the picture entirely, for one, or closer to earth, extending the same accommodation that has already been offered to certain religious employers to secular companies.  This accommodation basically requires health insurance issuers to exclude contraceptives from an objecting employer’s coverage and the issuer itself then assumes sole responsibility for providing separate payments for contraceptive services without cost-sharing, an arrangement that is supposed to be at least cost neutral for the issuer (although that is up for debate).

My Take

At the end of the day, there’s not an outcome that SCOTUS could reach that would surprise me here.  As we’ve already seen from the lower court opinions, there’s quite a bit of latitude for reasonable disagreement and logical arguments on both sides. But if I had to make a guess, it would be this: SCOTUS will agree that even for-profit, secular corporations have free exercise rights, but will maintain that those rights are not substantially burdened by the contraceptives coverage mandate.  Since insurance plans must offer the package of essential health benefits (including contraceptives) to comply with the ACA, employers won’t have to do much active legwork to offer coverage that satisfies their obligations under the law.  At the end of the day, the employers are indeed being pushed into complicity with behavior they find objectionable, but the level of complicity is so remote that it starts to look more like salaries and taxes.  I tend to think that SCOTUS would be loathe to go down a path that would allow employers to remove anything from health plans that they may object to.  And more importantly, I hope that having upheld the individual mandate, SCOTUS will not want to be party to killing Obamacare by 1000 pinpricks.  Others seem to be handling that just fine, thank you.

For the record, I can’t close without pointing out that if it really is true that insurers can provide free contraceptives coverage in a cost-neutral fashion, then perhaps we ought to put the burden on them across the board for all types of employers, religious or not, objecting or not.  But of course, if what is being asked of insurers is not really cost-neutral, as I fear may be the case, the foundation of the accommodation offered to certain religious employers may be quite problematic.

Poor Obama, guy can’t catch a break these days.

For those of you interested in reading more, here are a few resources you may find helpful:

https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/womens-preven-02012013.html

Click to access 2013-15866.pdf

https://www.becketfund.org/hhsinformationcentral/

https://www.aclu.org/reproductive-freedom/challenges-federal-contraceptive-coverage-rule

https://www.kaiserhealthnews.org/Stories/2013/September/18/contraception-mandate-challenges.aspx