Questioning a Defense of Religious Liberty Challenges to ACA’s Contraception Policy

By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School

John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.

2. Breen argues that the “least restrictive means” requirement imposes a general obligation on government to pay the costs of a legal obligation from which a religious objector seeks exemption. To borrow Professor Breen’s expression, “this is precisely wrong,” as United States v. Lee made clear. Lee involved an Amish employer who refused to pay the employer’s share of FICA taxes on his employees, arguing that it violated his religious belief in individual self-sufficiency. (Lee did not involve a “general tax,” as Breen and others characterize FICA; it was, and remains, a specific tax levied and earmarked to fund a specific expenditure -- social security pensions.) Under Breen’s theory, the government should have been obligated to pay those taxes in the employer’s place and on his behalf, as the least restrictive means of implementing social security coverage for his employees while respecting his religious free exercise.

Of course, Lee held no such thing, concluding instead that the Amish employer was required to pay the FICA taxes himself, his religious beliefs notwithstanding. Lee is thus authority for the proposition that when a religious objector seeks exemption from a legal requirement imposed on the objector for the benefit of third parties, the government is under no obligation to provide the benefit itself at its own cost as a less restrictive alternative.

(It is worth emphasizing here that the very question of least restrictive means only arises if a court first finds that the mandate constitutes a “substantial burden” on religious free exercise. For the reasons stated in my Issue Brief and below, it is doubtful that the mandate constitutes such a burden.)

3. Finally, Professor Breen engages in a lengthy discursus designed to show that unlike wages, benefits included in an employer insurance plan are choices “specifically” presented or endorsed by the employer to the employee, and thus constitute a “substantial burden” under RFRA. As Breen puts it, whereas a wage check, once cashed, allows the employee to buy literally anything without employer input, health insurance is a series of “binary choices” that are “place[d] before the employee” by the employer: appendectomy, or not; knee replacement, or not; etc.

This is a highly contrived way of conceptualizing health care choices. A person who suffers from lower back pain chooses among steroid injections, physical therapy, nerve blocks, back braces, prescription painkillers, various surgical procedures, and other covered benefits in deciding how to deal with his or her condition. It is doubtful -- to say the very least -- that the employee perceives the employer to have recommended or endorsed all or any of these treatment options; indeed, it is doubtful that the employee thinks about the employer at all in making the choice. Employees simply do not experience health care benefits as having been endorsed or suggested to them by their employers, and they are unlikely to experience contraceptive coverage any differently. (It might make sense to conceptualize the contraception mandate in this way if it were the only covered benefit under a health insurance plan. But health insurance plans cover hundreds, if not thousands of benefits -- so many benefits that it makes little sense to treat the employer as having endorsed any particular one, let alone all of them.)

Health care plans do not cover everything, so plan-spending choices are not infinite like wage-spending choices. But health insurance spending choices are more than numerous enough to make health insurance very close to wages in this regard: If enabling employees to purchasing contraceptives by paying above-subsistence wages is not a substantial burden on the employer’s religious free exercise, then neither is enabling employees to obtain those contraceptives through the additional compensation of health insurance by choosing them from among a huge number of covered benefits.