Tomorrow afternoon, in an unusual procedure, the en banc Tenth Circuit will consider Hobby Lobby Stores, Inc. v. Sebelius, a challenge to a Department of Health and Human Services regulation requiring employers to provide insurance coverage for contraceptives and abortifacient drugs, despite the fact that it violates the religious and ethical beliefs of many employers. The Tenth Circuit’s orders granting initial en banc argument and setting the date are here and here.
Numerous challenges to the regulation have been filed around the country, and in most cases, the challengers have prevailed in persuading courts to grant injunctions against the mandate. A two-judge panel of the Tenth Circuit, however, erroneously denied the Hobby Lobby’s request for an injunction in this decision last year. The Tenth Circuit now has a chance to correct its error, and join the majority of courts that have, thus far, properly granted injunctions against the mandate.
When a case like this arises, most immediately think of the First Amendment’s Free Exercise Clause. While the HHS may indeed violate the First Amendment, the courts may never reach that question because a federal statute, the Religious Freedom Restoration Act (RFRA), provides greater protection to religious liberty than the First Amendment. RFRA was passed in 1993 by a Democratically-controlled Congress, and signed into law by President Clinton.
Under RFRA, the Government may only “substantially burden” a person’s exercise of religion if the Government demonstrates that application of the law furthers a “compelling governmental interest” and is the “least restrictive means” of furthering that interest. See 42 U.S.C. §2000bb-1.
The HHS mandate does not satisfy this test:
- The HHS mandate imposes a “substantial burden” on Hobby Lobby’s exercise of religion because it will impose substantial fines on Hobby Lobby should it refuse to provide insurance coverage for services to which it has religious objections.
- The Government does not have a “compelling governmental interest” in requiring Hobby Lobby, or any other employer, to provide insurance coverage for contraceptive or abortifacient drugs. The Government has exempted many employers from having to comply, which contradicts its claim that its interest is “compelling.” In addition, contraceptives are cheaply and widely available, and if an employee wants such coverage, they can choose to work for an employer who provides it.
- Even if there were somehow a “compelling” interest in providing access to such services, requiring employers to do so is not the “least restrictive means” of doing so (i.e. it is not “least restrictive” of religious liberty). The Government could provide coverage for such services as a direct welfare benefit, or provide a tax credit or other direct subsidy for those who want to buy contraceptives or abortifacients. In other words, if the Government truly believes that contraceptives are an essential aspect of health care, it has ways to provide them that do not infringe on religious liberty.
In addition, the notion that business owners give up their statutory and constitutional rights to the free exercise of religion when they enter the marketplace seems untenable. The free exercise of one’s religious beliefs would be of little value if it were only protected within the bounds of a church, synagogue or mosque, rather than protecting the right of people to live out their beliefs in the ordinary activities of daily life.