Obama's Contraception Mandate Won't Survive Strict Scrutiny
Those who argue that the HHS contraception mandate is legal are wrong because they are looking at only half of the equation. I haven't looked at it as closely as has Richard, but I doubt that the mandate violates the Free Exercise Clause as interpreted by the Supreme Court in Smith v. Employment Division. Smith says that a generally applicable law whose purpose is not to regulate religion does not automatically violate the Free Exercise Clause. Otherwise, the Court worried, religious groups might seek exceptions from the criminal laws, tax law, etc. that just apply to all groups and individuals in the normal course.
But Smith does not settle the matter, because Congress passed the Religious Freedom Restoration Act in 1993. RFRA reversed the Smith approach, and instead restored the previous test, which held that the government could not substantially burden someone's free exercise of religion unless in furtherance of a compelling government interest, using the least restrictive means possible. This is known as strict scrutiny, and few laws survive it.
The Supreme Court struck down RFRA in City of Boerne v. Flores in 1997 but — and this is the important part — only insofar as it applied to state governments. RFRA still applies to the federal government: Congress can require the federal government to be more generous on individual rights than the court requires. I cannot see how a Court would conclude that the contraception mandate survives strict scrutiny — I don't believe the courts have found that the provision of a commercial product like health insurance is a compelling government interest (very few things are — in fact, I think there are only two: war and racial diversity). Thus, those who claim that the contraception mandate does not violate religious freedom are wrong, because they forget that RFRA is still on the books and plainly forbids the contraception mandate.
It could always be the case that Congress, in passing Obamacare, included somewhere in its hundreds of pages a statutory exception for healthcare from RFRA. But if it did, I have yet to hear about such a provision.
- Comment (7)
- · Quote
- · UnfollowFollow (2)
Comments:
May '10
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
Thanks John. I will be covering the strict scrutiny test as it applies to suspect classifications in a few weeks. I look forward to using this as a current example.
Mar '12
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
John, what are the chances that the Court's reasoning in striking down RFRA as it applies to state law in Flores could form the basis for a similar decision for the federal law if the issue went to trial?
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
Nice point on federalism.
Feb '11
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
Question: You mention war and racial diversity. But the first thing that came to my mind was public health, as in the case of mandatory immunization requirements. Does that fit into a different category?
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
John, I do hope that you are right, and it would be nice if the Supreme Court were once again unanimous -- as it was in the recent case concerning the right of the Lutheran Church to choose its own religious teachers.
Feb '11
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
Pardon my gross simplification, but I thought RFRA was unconstitutional (as applied to the states) because it exceeded the scope of Congress' "enforcement power" under § 5 of the Fourteenth Amendment. Justice Kennedy wrote:
"Congress' power under § 5, however, extends only to "enforc[ing]" the provisions of the Fourteenth Amendment. The Court has described this power as "remedial." The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power "to enforce," not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the "provisions of [the Fourteenth Amendment]."
I read the logic (if not the precise holding) of the opinion to be: Congress can legislate remedies to enforce the Bill of Rights, but it cannot alter the 'substance' of those rights...
Feb '11
Re: Obama's Contraception Mandate Won't Survive Strict Scrutiny
Yet one can argue that RFRA, though it only applies to the federal government, still alters the First Amendment right by legislating pre-Smith scrutiny and impeding on the Court's power under Marbury to interpret the meaning of constitutional rights.
What am I missing here?