Legal experts oppose Obamacare contraception mandate

Legal experts believe that the Obama administration’s contraception mandate fails to meet requirements needed to limit freedom of religion under federal law.

George Mason University law professor Helen Alvaré argued that “in many Catholic institutions, such as hospitals and universities, the refusal to insure for contraception is the single clearest statement the Church makes.”

The contraception mandate will prohibit these institutions' ability to witness to their faith through their actions, she said.

Alvaré participated in a March 22 panel on “Religious Freedom and Healthcare Reform,” sponsored by the Religious Freedom Project at Georgetown University's Berkley Center for Religion, Peace and World Affairs.

Panel participants discussed a controversial federal mandate that will soon require employers to offer health insurance plans that include coverage of contraception, sterilization and abortion-inducing drugs, even if doing so violates their religious beliefs.

The mandate sparked a storm of protest that led the Obama administration on Feb. 10 to promise an “accommodation” for religious freedom. Instead of directly purchasing the coverage that they find objectionable, the “accommodation” would require employers to contract with insurers that would provide the coverage for free.

Supporters of the mandate suggested that the accommodation offers an acceptable level of protection for religious freedom and stressed the benefits of contraception.

However, Alvaré pointed to data indicating that contraception does not necessarily benefit society.

She noted that rates of unintended pregnancy, abortion and non-marital childbearing have all increased since the Supreme Court recognized a “right” to contraception several decades ago.

In addition to the fact that birth control regularly fails, it gives people a false sense of security, making them more likely to engage in risky sexual behavior than they otherwise would, she explained.

Michael McConnell, a former federal judge and current law professor at Stanford University Law School, explained that at its core, the debate over the mandate is a question of religious freedom.

“I do not share the Church’s theology with respect to contraception,” said McConnell, who is not Catholic.

Yet he explained that the real issue in this case is not contraception, but the government’s “unprecedented decision” to require American individuals and institutions to act in a way that violates their religious beliefs.

In addition to Constitutional protections under the First Amendment, there is also support for religious freedom in statutory law, McConnell said.

He explained that the Religious Freedom Restoration Act of 1993 makes it clear that the federal government may not “substantially burden” the exercise of religion unless it is furthering a “compelling government interest” and employing the “least restrictive means” of doing so.

In this case, he said, it is “rather obvious” that the mandate imposes a substantial burden on the free exercise of religion by requiring religious individuals and organizations to participate in something that they consider gravely immoral.

Furthermore, in granting an exemption at all, however narrow, the administration was acknowledging that “this would be a burden” on the free exercise of religious groups that find it objectionable, he said.

He added that the mandate would impose a substantial burden even with the administration’s promised accommodation, which he said is “no difference in substance whatsoever” than the original regulation.

Turning to the standard for a “compelling government interest,” McConnell explained that the federal government issued the mandate because it believes that contraception coverage is important and wants to place the cost of covering it on employers.

This is “not a compelling interest at all,” he said.

He noted that multiple states have contraception mandates in place, but none of them implement them in the same sweeping way with such a narrow exemption as the federal mandate does.

If it were a compelling government interest, the regulations would not have included any exemption at all, he explained.

Finally, McConnell said, the mandate is not the “least restrictive means” of carrying out the government’s goal.

The administration could achieve its objective in another way, such as expanding Title X funding of contraception, without forcing religious employers to violate their consciences, he observed.

Because it fails to meet the standards set out for religious freedom cases, the mandate violates the Religious Freedom Restoration Act and should not be allowed to stand, he said.

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