By Angela C. Thompson
For the United States Justice Foundation
February 21, 2012
There has been a great deal of discussion in recent weeks among journalists, news anchors, bloggers, and even radio-talk-show hosts, regarding the Obama Administration’s recent announcement of its Interim Final Rule, mandating that employers pay for health insurance plans that offer contraceptives, abortifacients, and sterilization services at no cost. For many, the idea of forcing employers—including religious employers—to fund practices to which they have strong moral objections is antithetical to the most basic sense of justice. However, apart from offending one’s sense of justice, does the Interim Final Rule actually violate the Constitution? This opinion addresses that question and answers in the affirmative.
In March, 2010, Congress passed, and Barack Obama signed into law, the Patient Protection and Affordable Care Act, Public Law (“Pub. L.”) 111-148 (March 23, 2010), and the Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30, 2010), collectively known as the “Affordable Care Act” (colloquially known as “ObamaCare”). The Affordable Care Act (“ACA”) regulates the national health insurance market by directly regulating “group health plans” and “health insurance issuers.”
Under ACA, all employer health care plans must provide—at no cost to the employee—certain “preventive services” for women. ACA itself does not specify which preventive services must be covered, but deferred that decision to the Health Resources and Services Administration (“HRSA”), an agency of the Department of Health and Human Services (“HHS”).
On August 1, 2011, HHS, under the direction of Department Secretary Kathleen Sebelius, issued an Interim Final Rule (“HHS mandate”), stating that, beginning in August, 2012, employer-provided health care plans must cover all “preventive services” listed in HRSA’s guidelines, without charging a co-payment, co-insurance, or deductible.
The guidelines, in turn, defined “preventive services” as “the full range of the Institute of Medicine’s recommended preventive services, including sterilization procedures and all FDA-approved forms of contraception.” These approved forms of contraception include birth-control pills, prescription contraceptive devices (including IUDs), Plan B (also known as the “morning-after pill”), ulipristal acetate (also known as “ella,” or the “week-after pill”), and other drugs, devices, and procedures. The new guidelines also require the provision of sterilization procedures without deductibles or co-payments by the employees.
The guidelines did purport to provide an exemption for religious employers, applying to those that
meet[ ] all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i), or (iii), of the Internal Revenue Code of 1986, as amended.
However, the mandate only states that HRSA “may” grant exemptions to certain religious employers, and it imposes no constraint on HRSA’s discretion to grant exemptions to some, all, or none of the organizations meeting the definition of “religious employers.” Even if the exemption were mandatory in its application, it is worded so narrowly that it does not apply to most religious organizations. Most religious organizations have more than one purpose, and they may employ and serve individuals who do not share their beliefs.
No doubt recognizing that the exemption would only cover a select few religious organizations, the guidelines also contained a provision that all religious and/or nonprofit groups not meeting the narrow definition “who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.”
Understandably, HHS Secretary Sebelius’s announcement of these guidelines prompted an immediate outcry from religious groups of nearly every denomination, as well as sharp criticism from Republicans and Democrats alike. The narrow religious exemption would only apply to churches, whereas all other nonprofit and religious organizations would be forced to pay for contraception and related services, regardless of their religious beliefs. The additional one-year extension for compliance was seen as a veiled ultimatum from the Obama Administration for religious organizations to either violate their religious beliefs, or close their doors.
In the wake of this outcry, on February 10, 2012, Barack Obama personally announced a modification to the HHS mandate. His so-called “compromise” assured the American public that women would still have access to free preventive care that includes contraceptive services, no matter where they work. However, if a woman’s employer is a nonprofit that has a religious objection to providing contraceptive services as part of its health plan, the insurance company, not the employer, will be required to offer contraceptive care free of charge, without co-pays by the employees.
For obvious reasons, the proposed “compromise” did little, if anything, to assuage the widespread concern and criticism. As an initial matter, for-profit insurance companies will not simply donate contraceptives and/or costly sterilization procedures to plan enrollees. The added costs will necessarily be passed through to the employers, through increased premiums and other fees, resulting in exactly what Mr. Obama was claiming to avoid: the direct funding of these “preventive services” by employers with religious objections.
More importantly, these religious employers must still violate their beliefs by subsidizing insurance plans that provide the objectionable services to their employees free of charge. If the employers refuse to comply, the mandate punishes them with a fine. Furthermore, the “compromise” makes no provision for religious employers who self-insure, meaning that those organizations will still have to privately fund contraceptives, abortifacients, and sterilization procedures, or face similar punitive fines.
The United States Justice Foundation (“USJF”), along with a host of other public interest, pro-family, and religious groups, strongly believe that the HHS mandate, both in its original form and as modified, violates the United States Constitution. A discussion of the relevant legal principles follows.
The First Amendment to the U.S. Constitution provides, in pertinent part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
This provision for religious freedom was—as evidenced by its place of prominence in the very first Amendment to the United States Constitution—near and dear to the hearts of America’s Founding Fathers. Having witnessed the disastrous consequences in England that resulted from the monarch’s control of the established church, the drafters of the Bill of Rights wanted to ensure that the United States government would neither establish a state-run religion, nor trample on the right of the people to worship as they saw fit.
Accordingly, the U. S. Supreme Court has long recognized “a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.
The government may not impose a substantial burden on the free exercise of religion without passing a series of demanding tests. Our courts have historically gone to great lengths to preserve an individual’s right to practice his or her religion as dictated by his or her own conscience—even when those practices may be unpopular, unconventional, or even bizarre. Thus, historical free exercise cases have affirmed the right not to work on the Sabbath, the right of parents not to send their children to school after completion of the eighth grade, and even the right of a Santeria church to continue its practice of ritual animal sacrifice, all on the basis that, to do otherwise, would substantially burden the individuals’ sincerely-held religious beliefs.
The U. S. Supreme Court did make one notable departure from its usual deference to religious practices in Employment Division v. Smith, 494 U.S. 872 (1990). In that case, two employees were fired from their jobs because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which they were both members. They both applied for unemployment benefits, but those benefits were denied because their terminations were due to their illegal use of a controlled substance. The Oregon Court of Appeals held that the denial of benefits violated the employees’ First Amendment right to freely exercise their religion. However, the Supreme Court reversed, and held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” (Id. at p. 879.)
Thus, if a law is neutral and generally applicable, an individual must usually comply with it, even if it imposes a substantial burden on his or her religion. As noted in Smith, in observance of this principle, the Supreme Court has rejected religiously-motivated challenges to polygamy laws, child labor laws, and laws compelling military service.
However, a finding that a law is neutral and generally applicable does not end a court’s inquiry for free exercise analysis purposes. In response to the Smith decision, above, Congress enacted the Religious Freedom Restoration Act of 1993 (“RFRA”). RFRA directs that the “Government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability,” unless the Government “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.”
Turning to the HHS birth control mandate, it is unlikely that these tests can be satisfied. First, the universal availability of contraceptives, abortifacients, and sterilizations—free of charge—is not a compelling government interest. Second, even assuming that the provision of these services for free is a compelling government interest, the HHS mandate is not the least restrictive means of achieving that interest.
For purposes of RFRA, the first relevant inquiry is whether the government regulation at issue will impose a substantial burden on the free exercise of religion. In this case, the answer is an undisputable “yes.”
Nearly all evangelical Christians object to “emergency contraceptives” (i.e., abortifacients), on the basis that they prevent implantation of a fertilized egg and cause the living embryo to die. Mainstream Catholicism goes even further, by teaching that any form of contraception or sterilization is morally wrong.
The U. S. Supreme Court has long recognized that abortion and related issues implicate sincerely-held religious beliefs. In the landmark case of Roe v. Wade, 410 U.S. 113, 116 (1973), even as the Court affirmed the legality of abortion, it acknowledged that “the sensitive and emotional nature of the abortion controversy” provokes “vigorous opposing views” and inspires “deep and seemingly absolute convictions.” In Planned Parenthood v. Casey, 505 U.S. 833, 850 (1992), the Court acknowledged that abortion has “profound moral and spiritual implications,” and that “men and women of good conscience can disagree” about those implications and can find abortion “offensive to [their] most basic principles of morality.” In Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993), the Court admitted that “there are common and respectable reasons for opposing [abortion].” And, as recently as 2000, the Court acknowledged that “[m]illions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child.”
The HHS mandate’s requirements would force religious employers to pay for contraceptives, abortifacients, and sterilization services, or else risk the imposition of significant fines. This constitutes a substantial burden on the religious beliefs of these organizations, because it imposes severe limits on their ability to practice essential tenets of their faith. The alternative of submitting to large fines also constitutes a substantial burden, as recognized in Wisconsin v. Yoder, 406 U.S. 205 (1972), where the U. S. Supreme Court found that even a $5.00 fine for refusing to send their children to public high school imposed a substantial burden on the parents’ free exercise of their Amish faith.
Thus, there is no question that the HHS mandate, if enforced, will impose a substantial burden on any employer who objects, on religious grounds, to paying for contraception, abortifacients, and/or sterilization procedures.
The Guttmacher Institute, in June, 2010, published a fact sheet regarding contraceptive use in the United States. Among other things, it noted that:
Thus, only 7% to 11% of women aged 15-44 may stand to benefit from the HHS mandate’s provisions. Even this figure is arguably inflated, because there is no data indicating how many women among this group are employed and, thereby, eligible for free services under the mandate. For instance, most women aged 15-18 are not employed, or if they are, their employment is not of the type that would provide health insurance.
The Guttmacher Institute’s research also reveals that:
Organizations such as Planned Parenthood already offer free or low-cost contraception, including “emergency contraception” (the morning-after pill). Women who attend college may usually obtain free contraceptives from the university’s health services department. And, in the state of New York, a state Medicaid program provides free birth control, sexually-transmitted infection (STI) testing, PAP tests, pregnancy tests, gynecological exams, and more to anyone under the age of 21. Women aged 21-64 also may receive these services for free if their income does not exceed 200% of the federal poverty level.
In other words, contraceptives, and other “family planning” services, are readily available to the public at little to no cost, and women are already availing themselves of these providers.
Perhaps most important is the Guttmacher Institute’s statistic on employer-provided contraceptive coverage:
This means that 90% of women who would qualify for “preventive services” under the HHS mandate (i.e., employed women) do not even need the coverage. The HHS mandate would only provide a marginal increase in availability of contraceptives and related services and, as the U. S. Supreme Court has recently noted, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”
For these reasons, it is unlikely that the Obama Administration can prove the existence of a compelling government interest to support the HHS mandate.
Even assuming, arguendo, that the government’s interest in providing free contraceptives, abortifacients, and sterilizations is compelling, the HHS mandate does not pass Constitutional muster because it is not the least restrictive means of furthering that interest.
As discussed above, the mandate fails to provide a meaningful exemption for employers who have religious objections to paying for contraceptives and related services for their employees. HHS could have entirely avoided this imposition on religious liberty by including an exemption that covered all religious and nonprofit groups that object on the basis of their sincerely-held religious beliefs. The purposeful inclusion of these groups (as evidenced by giving them an additional year for compliance) is overbroad and unnecessary to accomplish the Obama Administration’s purported goal.
It would be one thing if the Administration placed such high importance on the universal availability of “preventive services” that it chose to apply the HHS mandate equally across the board, with very few to no exceptions. Yet, the ACA’s myriad non-religious exceptions and exemptions nearly swallow up the rule. As one example, the mandate provides an exemption for “grandfathered” insurance plans. HHS itself estimates that most—as many as 75%—of large employers (employers with 100 or more workers) “will not see major changes to their coverage as a result of this regulation” and that approximately 70% of small employers’ plans would be grandfathered for at least the first year, dropping to perhaps one-third over several years. Assuming that the number of grandfathered plans shrinks to 55% for large employers and 35% for small employers by 2013, this still adds up to roughly 88 million Americans who would not be subject to ObamaCare’s “minimal essential coverage” provisions.
As further examples, ACA does not apply to employers with fewer than 50 employees, not counting seasonal workers, and certain provisions of ACA do not apply to members of certain religious groups.
Given the number of exemptions currently available under the mandate, it is inexplicable—and legally unsupportable—that the Obama Administration has failed to broaden the exemption for religious employers. If anything, rather than creating a broad religious exemption as the “least restrictive means” of imposing the mandate, ObamaCare has exempted almost everything but religious groups with conscientious objections to contraception, abortifacients, and sterilization services.
Such religious discrimination will not pass Constitutional muster. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the U.S. Supreme Court held:
[I]n circumstances in which individualized exemptions from a general requirement are available, the government “may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Respondent’s application of the ordinance’s test of necessity devalues religious reasons . . . by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment. (Id., at pp. 537-538, internal citations omitted.)
The Obama Administration has no compelling reason for refusing to accommodate employers’ conscientious religious objections to the HHS mandate. Thus, the HHS mandate fails the “least restrictive means” analysis. The Administration could very well provide for its desired “preventive services” in a way that imposes a significantly lessened burden on the free exercise of religion.
As already noted, the current religious exemption could be expanded to include all religious organizations, and even non-religious employers who object to contraception, sterilization, and/or abortifacients on religious grounds. Another option would be to devise a government-funded program for the small percentage of women who do not have access to affordable birth control. The imposition of this challenged cost on employers and/or insurers is an incredibly overbroad response to the alleged needs of a very narrow segment of the population.
The First Amendment protects individuals from being compelled to express adherence to an ideological point of view which they find unacceptable. For example, the First Amendment right to freedom of speech protects an individual’s right not to participate in a flag salute, or in a pledge of allegiance to the United States flag. And, just as the First Amendment may prevent the government from prohibiting speech, it may also prevent the government from compelling individuals to express certain views or pay subsidies for speech to which they object.
Similarly, the freedom of an individual to associate for the purpose of advancing beliefs and ideas is also protected by the First Amendment. The “freedom of association … [also] plainly presupposes a freedom not to associate.”
In Abood v. Detroit Bd. of Ed., 431 U.S. 209, 213 (1977), several teachers filed suit to challenge mandatory payment of dues to a teachers’ union on the grounds that the union would participate “in a number and variety of activities and programs which are economic, political, professional, scientific and religious in nature of which Plaintiffs do not approve, and in which they will have no voice….”
The teachers also objected because “they have been prohibited, not from actively associating, but rather from refusing to associate. They specifically argue that they may constitutionally prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative.”
In holding that the mandatory dues requirement violated the First Amendment, the Court reasoned:
The fact that the appellants are compelled to make, rather than prohibited from making, contributions for political purposes works no less an infringement of their constitutional rights. For at the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the State. [Citations.] And the freedom of belief is no incidental or secondary aspect of the First Amendment’s protections.
If the Supreme Court has assigned such great value to the “freedom of [political] belief,” it seems far-fetched to think that the high Court will be any less protective of religious beliefs regarding the wrongfulness of contraception, abortifacients, and/or sterilization. After all, such beliefs have been espoused by mainstream religious denominations for centuries.
Anticipating the High Court’s disapproval of the mandate on these grounds, HHS should, instead, broaden the existing religious exemption so as to avoid violating First Amendment rights. As Abood noted, a union may Constitutionally spend funds for the expression of political views, on behalf of political candidates, or for the advancement of ideological causes. However, “the Constitution requires … that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will ….”
A broadened religious exemption would give all religious and nonprofit employers the ability to “opt out” of funding or giving implied approval to practices that they deem immoral, similar to the exemption created by the Supreme Court in Abood.
In sum, the HHS mandate, in its current form, violates the First Amendment of the United States Constitution, in that it tramples the rights of thousands of Americans to freely exercise their religion. The mandate may also violate the First Amendment in that it compels religious employers to engage in speech and expressive association with which they cannot agree, based on their religious convictions.
If Mr. Obama truly wishes to offer a “compromise,” he will work with HHS to craft a meaningful exemption providing for the religious convictions of thousands of religious and nonprofit employers who cannot, in good conscience, spend their charitable dollars on, or give their implied approval to, practices which violate their sincerely-held religious beliefs.
 76 Fed. Reg. 46623 (Aug. 3, 2011).
 January 20, 2012 HHS News Release, available online at: http://www.hhs.gov/news/press/2012pres/01/20120120a.html; see also Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
 45 C.F.R. § 147.130(a)(iv)(B).
 45 C.F.R. § 147.130(a)(iv)(A).
 See note 2, supra.
 February 10, 2012 White House Fact Sheet: Women’s Preventive Services and Religious Institutions, available online at http://www.whitehouse.gov/the-press-office/2012/02/10/fact-sheet-women-s-preventive-services-and-religious-institutions.
 For example, a charitable organization with 100 employees will have to pay more than $16,000 per month in penalties for the “privilege” of not underwriting medical services it believes to be immoral. (See 26 U.S.C. § 4980H(a) and (c)(1).)
 Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).
 Thomas v. Review Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 718 (1981).
 Sherbert v. Verner, 374 U.S. 398 (1963).
 Wisconsin v. Yoder, 406 U.S. 205 (1972).
 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
 Reynolds v. United States, 98 U.S. 145 (1879).
 Prince v. Massachusetts, 321 U.S. 158 (1944).
 Gillette v. U.S., 401 U.S. 437, 461 (1977).
 See e.g. Pope Paul VI’s encyclical letter Humanae Vitae, available online at http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae_en.html:
We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded …. Equally to be condemned … is direct sterilization, whether of the man or of the woman, whether permanent or temporary. [¶] Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation—whether as an end or as a means.
 Stenberg v. Carhart, 530 U.S. 914, 920 (2000).
 See note 7, supra.
 The Guttmacher Institute, Facts on Contraceptive Use in the United States (June 2010), available at http://www.guttmacher.org/pubs/fb_contr_use.html, citing Mosher WD and Jones J, Use of contraception in the United States: 1982–2008, Vital and Health Statistics, 2010, Series 23, No. 29.
 Id., citing Frost JJ, Trends in US women’s use of sexual and reproductive health care services, 1995–2002, American Journal of Public Health, 2008, 98(10):1814–1817.
 Family Planning Benefit Program (FPBP), see http://www.health.ny.gov/health_care/medicaid/program/longterm/familyplanbenprog.htm.
 The Guttmacher Institute, Facts on Contraceptive Use in the United States, supra, citing Sonfield A et al., U.S. insurance coverage of contraceptives and the impact of contraceptive coverage mandates, 2002, Perspectives on Sexual and Reproductive Health, 2004, 36(2):72–79.
 Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2741, fn.9 (2011) [noting that the current regulatory system already “does much to ensure that minors cannot purchase seriously violent games on their own” and even though “20% of those under 17 are still able to buy M-rated games,” “some gap in compliance is unavoidable”].
 HHS Fact Sheet, Keeping the Health Plan You Have: The Affordable Care Act and “Grandfathered” Health Plans, available online at http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html
 26 U.S.C. § 4980H(c)(2)(A).
 See e.g., 26 U.S.C. § 5000A(d)(2)(a)(i) and (ii) [individual mandate does not apply to members of “recognized religious sect or division” that conscientiously objects to acceptance of public or private insurance funds—i.e., the Amish and similar sects]; 26 U.S.C. § 5000A(d)(2)(b)(ii) [individual mandate does not apply to members of “health care sharing ministry” that meets certain criteria].
 People of State of California v. FCC, 75 F.3d 1350 (9th Cir. 1996).
 Russo v. Central School Dist. No. 1, Towns of Rush, et al, Monroe County, State of NY, 469 F.2d 623 (2d Cir. 1972); see also Frazier ex rel. Frazier v. Winn, 535 F.3d 1279 (11th Cir. 2008) [a Florida statute requiring students to stand at attention during the pledge of allegiance violated the First Amendment; however, requiring parental permission to be excused from the pledge did not].
 U.S. v. United Foods, Inc., 533 U.S. 405, 410 (2001), citing Wooley v. Maynard, 430 U.S. 705, 714 (1977) and West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943).
 Ibid., citing Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977) and Keller v. State Bar of California, 496 U.S. 1 (1990).
 Elrod v. Burns, 427 U.S. 347, 355-357 (1976); Cousins v. Wigoda, 419 U.S. 477, 487 (1975); Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-461 (1958).
 Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984), emphasis added.
 The Court acknowledged that compelling employees to financially support a union has an impact on their First Amendment interests. “An employee may very well have ideological objections to a wide variety of activities undertaken by the union…. [For example, h]is moral or religious views about the desirability of abortion may not square with the union’s policy in negotiating a medical benefits plan.” (Abood v. Detroit Bd. of Ed., supra, 431 U.S. at p. 222.)
 Id. at p. 234.
 Id. at pp. 234-235, quoting West Virginia Bd. of Ed. v. Barnette, supra, 319 U.S. at p. 642: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
 See note 17, supra.
 Abood v. Detroit Bd. of Ed., supra, 431 U.S. at pp. 235-236.