Helen M. Alvaré is Professor of Law at George Mason University School of Law.
It seems a safe bet that a post-Burwell v. Hobby Lobby Stores Court will have little difficulty concluding that the Department of Health and Human Services (HHS) contraception coverage mandate “burdens” religious freedom for purposes of the Religious Freedom Restoration Act (RFRA). Otherwise, the Court would be opening the door for lawmakers, regulators, and judges to evaluate the theological verity of claims about the conflict between a particular state action and a religion’s scripture or traditions.
What seems highly uncertain, however, is what a majority of the Court would say respecting the federal government’s “compelling interest” in forcing the Little Sisters of the Poor and other religious institutions (which are not houses of worship) to insure contraceptives and early abortifacients for their employees and their female children. The Hobby Lobby majority skipped over RFRA’s compelling state interest prong and proceeded directly to a strongly worded conclusion about the government’s failure to employ the “least restrictive means.” Only one of the five Justices in the majority – Justice Anthony Kennedy in his concurrence – suggested substantive agreement with the government’s claim that the mandate served a compelling interest in the health of female employees. But his six-line treatment of the subject did not even allude to the legal standards for proving a compelling state interest, and accepted at face value the government’s conclusory representations about the links between free contraception and women’s health.
Of course it remains possible that an opinion in these cases would again dwell upon the “least restrictive means” prong. The Court could bless the existing “accommodation,” or even agree with the religious institutions that the government could find a way on its own to provide free contraception to their employees, without any longer using the religious institutions as a delivery vehicle.
For several reasons, however, it would be both disappointing and problematic to receive from the Court an opinion devoid of a “compelling state interest” analysis. First, although the standard is not yet sufficiently specified by the Court in the religious freedom context, it will increasingly figure in the near future in cases involving growing demands for religious institutions to cooperate with abortion, same-sex marriage, and, likely, euthanasia. Second, the government’s case for a “compelling state interest” is exceptionally weak. Yet for years the government has often carried the rhetorical day with generalized references in both legal and popular sources to a relationship between the mandate and “women’s health” and “gender equality.” The following paragraphs treat these two points.
First, fleshing out the contents of the “compelling state interest” requirement will provide much-needed guidance in future religious freedom cases. Lawyers are accustomed to encountering compelling state interest analyses in due process and equal protection cases involving fundamental constitutional rights and suspect classifications. There are a significant number of cases interpreting the meaning of a “compelling state interest” in the areas of speech or racial discrimination. But there are fewer in the area of religious freedom since the Court’s 1990 decision in Employment Division v. Smith severely restricted the number of free exercise challenges able to provoke such analysis. This is true even following the passage of RFRA, which once again mandated that laws burdening religion must be justified by a compelling state interest, realized by means that are the least restrictive of religious freedom.
The two leading cases specifying the “compelling state interest” test – Holt v. Hobbs (upholding a Muslim prisoner’s half-inch beard) and Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (upholding a religion’s use of a banned narcotic) – seemed to indicate the following requirements at a minimum:
In a free speech case in which the Court lavished attention on the “compelling state interest” analysis, Brown v. Entertainment Merchants Association (holding that a California law banning the sale or rental of violent video games to children violates the First Amendment), however, the majority articulated even more specific requirements, which seem well-suited to rules like the HHS mandate. This is because lawmakers in both cases claimed that their rules could produce specific empirical outcomes. Brown’s additional “compelling state interest” elements included, inter alia: specifying the particular problem in need of a solution; producing research and data – more than a few scattered pieces – demonstrating causation (not merely correlation) between the state action and the desired outcome; and showing that the law could close the gap between the existing and the desired situation by more than a few percentage points.
There seems little reason not to apply the more detailed requirement of Brown beyond free speech claims, given O Centro’s reminder that the “compelling state interest” test is “context specific.” In the present cases, the government is claiming that mandatory contraception coverage will produce fewer unintended pregnancies, fewer abortions, and better health and greater social equality for women.
Second, a “compelling state interest” analysis in the context of a mandate case would shed light on the government’s tendency – especially when contraception programs are concerned – to make extravagant claims without empirical foundation, while threatening the religious freedom of institutions providing unparalleled amounts of service to women. Governments at both the federal and state level have fallen into the habit of using contraception to “signal” their commitment to women’s rights. The facts on the ground, however, are much more complex.
HHS asserts that mandating religious institutions to provide free contraceptives and abortifacients will result in fewer unintended pregnancies, fewer abortions, and healthier babies whose mothers will be less inclined to smoke, drink, and have pregnancies that are too closely spaced. They are also maintaining that women with certain disorders for which pregnancy is contraindicated will be healthier, and that birth control can help prevent some forms of cancer. Finally, they claim that women’s different health needs generate additional costs, among which birth control is singled out as the most significant.
The empirical problems with all of these claims are overwhelming, and I can only scratch the surface here. The Institute of Medicine report underlying the mandate, as well as the government’s briefs in the mandate cases – based largely on the report – refer to studies and statements that are either entirely inapposite, contradictory, or quite insufficient. Empirical data pointing in the opposite direction is ignored.
To name just a few of the problems with the government’s case: it fails to mention scientists’ lack of agreement regarding how to measure unintended pregnancy, or to account for the forty- to fifty-percent rise in unintended pregnancy (as the government defines it) during the decades that the federal government was dramatically expanding contraception funding and programs. It fails to account for the dramatic rise in abortion rates during this same period. It overlooks the fact that abortions and unintended pregnancies have risen most among the less-privileged women who were the exact intended beneficiaries of government contraception programs. It claims contraception’s ability to prevent particular cancers without simultaneously noting its causal link with other kinds of cancers. Its claims regarding contraception’s ability to improve the health of women and children rely upon studies overtly disclaiming “causal” links, or even suggesting that factors unrelated to contraceptive usage, are responsible for their outcomes. It suggests that contraception will help women with a few named and rare disorders, but these disorders contraindicate for any contraception save the cheapest, non-hormonal, barrier or natural methods. It claims that free contraception will close a gap between the cost of health care for women and men, without any credible studies pinpointing contraception as the culprit.
All of this is on top of the fact that the ACA and HHS have exempted millions of Americans from the contraceptive mandate already, thus communicating its less-than-compelling status. The upshot is this: in a country of nearly universal contraceptive use among women who don’t choose to reject it for reasons of health or side effects or religion… In a country where women who are not employed have access to enormous quantities of contraception from multiple government and private sources…In a country where women are actually suffering and dying from a long list of diseases and disorders for which they do not receive free medicine… And in a country where rates of unintended pregnancies and abortions have grown large alongside expanded access to contraception… the government’s campaign to force the Little Sisters and others to facilitate contraception at the cost of their institutional existence seems strictly ideological, strictly a matter of cementing political alliances with particular interest groups, and not at all empirically compelling.