Will the Contraception Mandate Survive Judicial Review?

Yesterday, the Eighth Circuit Court of Appeals issued a stay blocking the Obama administration's requirement that employer health-insurance plans cover contraception. The related suit was filed by Frank O'Brien, a Roman Catholic business owner who claimed that the mandate violated his rights under the free exercise clause of the First Amendment.

It's not clear whether the stay indicates a real chance that the mandate will ultimately be ruled unconstitutional. It was granted in a one-line order, with one of the judges in a three-judge panel dissenting. The stay order indicates that the two other judges consider the suit non-frivolous, but this does not necessarily mean that O'Brien will ultimately prevail.

Still, the appeals court would have been better not to issue the stay, because the free exercise argument being made against the contraception mandate is indeed frivolous. The key precedent, Oregon v Smith, makes it clear that generally applicable laws do not violate the First Amendment unless they were specifically targeted at religious expression, which of course the Affordable Care Act was not. The First Amendment does in some cases prevent generally applicable laws from applying to religious institutions under the "ministerial exception," but again this doesn't apply O'Brien's business. Moreover, the contraception mandate would be a particularly bad case for a new exception to Smith, since allowing employers to impose their religious faith on employees who do not share it would result in a net diminution of religious freedom.

That the argument is bad, however, does not necessarily mean that it is doomed. After all, the ad hoc arguments conservatives developed against the ACA based on the Commerce Clause weren't much more plausible, and yet they got five votes from the Supreme Court. The Eighth Circuit may well reject the arguments after the appeal is heard, but the stay should be cause for at least a modicum of concern.

Comments

From the article (FTA): "The key precedent, Oregon v Smith, makes it clear that generally applicable laws do not violate the First Amendment unless they were specifically targeted at religious expression, which of course the Affordable Care Act was not." -- Um, You missed that Religious Freedom Restoration Act passed in the wake of "Oregon v. Smith" and upheld as applicable to the federal government in "Gonzales v. UDV". This portion of Your argument is invalid.

Also, FTA: "allowing employers to impose their religious faith on employees who do not share it would result in a net diminution of religious freedom." -- Were such a scenario the case would be one thing; however, such a scenario is not the case. The Employer in this case is not requiring Employees to adhere to the Employer's faith, which would be the "imposition" You describe. The Employer is saying, "My faith prohibits Me from providing this particular subsidy for You but allows Me to pay You a salary so You can choose to purchase this product Yourself." The two concepts are distinctly different. This portion of Your argument is also invalid.

Re "ministerial exceptions": In Hosanna-Tabor, a unanimous Supreme Court said, generally speaking, Whoever a religion classifies to be a Minister is left to the religion in question and courts may not second guess such decisions. Consequently, if the Catholic church were to classify Frank O'Brien as a Minister, as Owner of His business, it is not out of the question He might qualify for the ministerial exception. Yet again, this portion of the argument is invalid.

Lastly, FTA: "the ad hoc arguments conservatives developed against the ACA based on the Commerce Clause weren't much more plausible, and yet they got five votes from the Supreme Court." -- While the commerce clause argument might not have seemed more plausible, it was nonetheless determined to be sound by the institution charged with the authority to define the meaning of the constitution. Fortunately for the health reform bill, so too was the argument the Individual mandate is a tax increase with a waiver for certain behavior also determined to be sound.

You need to be logged in to comment.
(If there's one thing we know about comment trolls, it's that they're lazy)

Connect
, after login or registration your account will be connected.
Advertisement