The HHS vs. the RFRA: Something has to give way

Ed Whelan, President of the Ethics and Public Policy Center and the main writer on NRO’s “Bench Memos” blog, has posted three pieces about the HHS contraception mandate and how it does or does not align with the Religious Freedom Restoration Act : an Introduction, a piece on “exercise of religion“, and a piece on how the HHS mandate does “substantially burden” the “exercise of religion”.

I’ve indulged in some cherry picking, but only to spur folks on to reading the three posts in their entirety. From the first:

What I do find remarkable—even amazing (to reprise Justice Kagan’s term)—is that the HHS mandate appears to be so clearly unlawful. In particular, I don’t see how the Obama administration could actually believe that the HHS mandate is compatible with the federal Religious Freedom Restoration Act. (The Supreme Court held in City of Boerne v. Flores (1997) that Congress lacked the power to apply RFRA against the states, but the Court recognizes, as its decision in Gonzales v. O Centro Espirita Beneficiente Uniao de Vegetal (2006) makes clear, that RFRA applies against the federal government.)

RFRA provides that the federal government

may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

This standard applies “even if the burden results from a rule of general applicability.” The term “exercise of religion” is, in turn, defined broadly to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

From the second, on exercise of religion:

Indeed, HHS, in explaining its decision to allow the HHS bureaucracy to establish exemptions from the mandate for an extremely narrow category of “religious employers,” states that “it is appropriate [for the bureaucracy to take] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” (See page 46623 of HHS’s interim rule (emphasis added).) HHS is thus acknowledging that these employers are engaged in an “exercise of religion” (within the meaning of RFRA) when they refuse to provide health insurance that covers contraceptives. (Why else even contemplate a religious exemption?) Although HHS doesn’t see fit to allow exemptions to take into account the effect on the religious beliefs of other employers, that doesn’t change the fact that it implicitly concedes that other employers who refuse, for religious reasons, to provide health insurance that covers contraceptives are likewise engaged in an “exercise of religion.”

In short, it’s clear, for purposes of RFRA, that a person engages in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients.

From the third:

Does the HHS mandate “substantially burden” the “exercise of religion” by those persons and organizations who have religious beliefs that forbid them from providing contraceptives and abortifacients? Again, the answer is clearly yes. ….

Employers who violate the HHS mandate, and who thereby fail to provide the coverage HHS deems necessary under Obamacare, incur an annual penalty of roughly $2000 per employee. More precisely, as I understand it, the base penalty is $2000 x (number of full-time employees minus 30), and the base is increased each year by the rate of growth in insurance premiums. So, for example, Belmont Abbey College (one of the two plaintiffs already challenging the HHS mandate), which has 200 full-time employees, is facing an annual base penalty of $340,000. Colorado Christian University (the other plaintiff) has 280 full-time employees and is facing an annual base penalty of $500,000. …

The HHS mandate forces Catholic employers to choose between following the precepts of their religion and incurring huge fines, on the one hand, and abandoning one of the precepts of their religion in order to stay in business, on the other hand.

Visit the “Bench Memos” blog for these and other posts.