法律英語 Legal Lad 2012 Birth Control and the First Amendment

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Today’s topic: Birth Control and the First Amendment.

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

What is the Birth Control Mandate?

In January 2012, the US Department of Health and Human Services unveiled a new rule that will require virtually all employers to provide health insurance that covers contraceptives. This rule – sometimes referred as the “birth control mandate” – is part of the 2010 health care reform law (known as the Affordable Care Act, or ACA). In today’s article, I’ll explain why this rule has become so controversial.

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The Affordable Care Act

Under Affordable Care Act, organizations with 50 or more employees will generally be required to offer health insurance to their employees, starting in 2014. The January 2012 regulation, however, clarified that such insurance must cover contraception, and that exceptions to that requirement are very narrow. Some religious organizations could get an exemption, but only those that serve primarily their own believers and not the broader community.

In short, although a church would not be required to subsidize birth control coverage for its employees, a church-affiliated university, or hospital, or charity would. The rule provoked an outcry among religious groups and politicians, who claim that it violates the Constitution.

The Free Exercise Clause

In particular, critics charge that the birth control mandate violates the First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The second part of that sentence – the “free exercise” clause is generally understood to mean that the government generally can’t force a person to violate the tenets of his or her religion. That is why, for example, the government has always recognized the right of conscientious objectors to decline military service, even when there is a draft. There are limits to free exercise, of course – I can’t simply declare that paying taxes is against my religion, unfortunately – but within those limits, Americans are free to practice their religion.

Religious groups have argued that the Birth Control Mandate forces them to violate their core beliefs, in violation of the free exercise clause. In February 2012, the Obama administration offered a new version of the mandate: religious organizations would still be required to offer contraceptive coverage, but they wouldn’t have to pay for it. Instead, insurers would have to eat the cost. The new proposal, however, did not seem to satisfy religious groups which (as I write this article) have filed at least three lawsuits challenging the law. Meanwhile, a group of seven states have also challenged the mandate.

State Birth Control Mandates

Will these lawsuits succeed? It’s unclear at this point; however, a number of similar laws at the State level have been upheld. In particular, a California birth control mandate with a very narrow religious exemption was upheld by the California Supreme Court in 2004 in Catholic Charities of Sacramento v. Superior Court of Sacramento. The United State Supreme Court, however, has never addressed this exact issue.

Federal Laws Are Subject to a Tough Test

The major difference between the State birth control mandates and the recent federal one is that federal laws are subject to a higher level of First Amendment scrutiny. According to a 1990 Supreme Court decision (Employment Division v. Smith), States can enact laws that have the effect of restricting religious liberty so long as the law is “neutral,” that is, it applies generally to all residents of the State and does not particularly target religion.

But federal laws are governed by the Religious Freedom Restoration Act, or RFRA, a 1993 statute that was passed in reaction to the Smith ruling. Under RFRA, Congress may inhibit the free exercise of religion only if it has a “compelling” interest in doing so, and only if it chooses the “least restrictive” means to go about it. In the upcoming lawsuits courts will have to assess whether the providing contraceptive coverage is a “compelling” interest, and if so, whether a broad-based mandate is the “least restrictive” means to further that goal. The heated arguments being bandied about by both sides in this debate suggest that its going to be a close call when the birth control mandate arrives in federal court.

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life. You can send questions and comments to [email protected]. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.