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Mandating Contraception: The Law Over Politics

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The Obama administration stirred up a hornet's nest with the contraception mandate, which will require religious-affiliated employers to provide free contraception to employees. The angry response from religious groups, Notre Dame and the Archdiocese of New York among them, was predictable. As many as 43 organizations are challenging the constitutionality of the mandate.

Critics claim the requirement is a violation of the First Amendment, of freedom of religion. Perhaps we are arguing the wrong point. Before the nation muddies the waters -- and the political arena -- with yet another Constitutional issue, I ask that we all pause. There is a limit to religious freedom. Reasonable people do not suggest the law carve out exceptions for human sacrifice, hard-core drug use, or bigamy.

The debate actually centers on where the line between religious freedom and a citizens' secular obligations to society should be drawn. This is not a Constitutional issue, but a less glamorous and equally compelling statutory issue.

Let's work through it.

Whether religious groups are to be exempted from laws is a political question, according to current Constitutional precedent. In 1990, the Supreme Court ruled that users of the narcotic peyote could be denied unemployment benefits even if their use was religiously motivated. The Court ruled that as long as laws were neutral toward religion -- and generally applicable -- they didn't violate Freedom of Religion just because they failed to carve out a few exemptions.

Critics of the decision, however, believed that any infringement upon religious liberty could be justified only by a compelling government interest and only if the measure provided the least restrictive means to achieve it.

Critics of Smith won the day politically and by 1993 turned that power into the Religious Freedom Restoration Act. This statute prohibits the government from imposing a "substantial burden" upon a person's free exercise of religion unless it can demonstrate both that "compelling government interest" and the "least restrictive means" of achieving it. The statute -- now only pertinent to federal legislation -- says one more thing: It applies to all subsequent federal legislation.

In other words, it applies to President Obama's Patient Protection and Affordable Care Act. Ultimately, whether the contraceptive mandate will survive depends on the answer to three questions based on this Act.

First, does mandatory contraception coverage "substantially burden" the free exercise of religion? Requiring a religious organization to offer a product or service contrary to its principles may well impose a substantial burden. The Court recently ruled in an employment case that "government interference with an internal church decision that affects the faith and mission of the church itself" is prohibited. It's not clear whether the ruling includes church-run hospitals, universities, and other institutions whose missions can be fairly described as secular.

I understand that a mandate that violates a deeply held belief may cause anguish. On the other hand, it is also plausible that any burden imposed by the mandate is not substantial because the requirement in no way alters the group's doctrinal beliefs, does not require any employee to violate her conscience and use the coverage provided. Plus, it's applicable in an employment context, not a sectarian context.

Second, if so, does mandated contraception coverage further a compelling government interest? I believe the government can demonstrate that cheap and easy access to contraceptives is a compelling government interest to reduce unwanted pregnancies. Anyone can take notice of the societal costs imposed by them. Moreover, access to contraceptives assists in a women's right to reproductive freedom, a right deemed fundamental in Roe v. Wade.

Finally, does the rule further that interest by the least restrictive means? The third question is perhaps the most difficult for the government. Despite the administration's recent compromise, there may be less restrictive means of accomplishing the same result. For example, employees of exempt religious-affiliated employers could be provided contraceptives through a government-funded program that eliminates any connection to the employer. Costs could be kept low, given that the exemption would apply to a narrow group of employers and the fact that the administration initially imposed the costs upon private insurers without much push-back. If necessary, a mechanism for funding the program could be enacted.

In one sense, removing the Constitution from the debate is a good thing. It brings the issue squarely into the political arena. The immediate, loud, and visceral response to the mandate has shown that the political process can handle extremely sensitive subjects.

Whether the federal government exceeded its constitutional authority will be decided shortly. Whether the narrower mandate regarding contraception coverage violates the First Amendment is not clear. What is clear is the administration will run this mandate through the gauntlet of the Religious Freedom Restoration Act.

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