Compelling Interest Cacodoxy: Why the Contraception Mandate Fails RFRA's Compelling Interest Analysis

Abstract

Since its birth in 2011, the Patient Protection and Affordable Care Act’s (“ACA”) Contraception Mandate (the “Mandate”) has been a frequent subject of discussion, debate, and litigation. From the outset, the government has defended the Mandate generally in the name of public health and gender equality. While both public health and gender equality are well within the government’s regulatory domain, these broadly framed interests are inadequate to survive the compelling interest test under the Religious Freedom Restoration Act (“RFRA”) and its companion, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).As RFRA’s text provides, when a person’s sincere religious exercise is substantially burdened, the government must demonstrate that application of the burden to the person is in furtherance of a compelling governmental interest. As the Supreme Court unanimously held in O Centro, RFRA’s “to the person” language requires that strict scrutiny is applied to the asserted harm of granting specific exemptions to a particular religious claimant, rather than the broadly formulated interests justifying the general applicability of a law. As will be explained, there is no compelling governmental interest under RFRA to enforce the Mandate against religious non-profits or closely-held businesses that sincerely hold religious objections, especially for coverage of contraceptives that operate to prevent implantation after fertilization. In Hobby Lobby, the Court assumed arguendo that the government had a compelling interest in the Mandate in order to base its decision on narrow tailoring. In doing so, the Court never conducted a RFRA compelling interest analysis. The purpose of this Note is to argue that the government lacks a compelling interest in enforcing the Mandate against religious non-profits or closely-held businesses after such an organization proves that the Mandate substantially burdens a sincere religious belief. Part I lays the scope and foundation of this Note, providing information on RFRA’s compelling interest test, the organizations and their beliefs, the Mandate, and the coverage mandated. Part II applies RFRA’s compelling interest test to religious non-profits and closely-held businesses. It notes the numerous exemptions already in place, the lack of evidence supporting the government’s claim that the Mandate furthers women’s health, and the small impact the Mandate has on a national scale for employers whose sincerely held religious beliefs are not substantially burdened by its imposition. Part III gives the current status of the Zubik cases, which in part involve the subject of this Note.