Where’s the Contraception Compromise?

Over at the Volokh Conspiracy, Professor Jonathan H. Adler, from the faculty of the Law School at Case Western Reserve University, makes these observations about the HHS ruling in: Where’s the Contraceptio Compromise?

The policy announced by HHS was not only controversial, bu potentially illegal as well. Whether or not the contraception mandat violates the First Amendment’s “free exercise” clause (and I doubt it did, at least under current doctrine), it is almost certainly violates the Religious Freedom Restoration Act (RFRA), a law enacted in 1993 to provide additional protection for religious institutions under federal law (for reasons explained by Ed Whelan in these posts). Under RFRA the federal government is barred fro imposing a substantial burden on the free exercise of religion, even if the burden is the result of a otherwise-valid government policy that does not target religious practice, unless the policy satisfies strict scrutiny (i.e. it is the least restrictive means of advancing a compelling governmental interest). This is a substantially more demanding test than is currently imposed under the Firs Amendment and it is a test the Administration’s policy would have had a hard time satisfying(Indeed, it’s a test it’s unclear the Administration eve considered.)

To read the complete essay go to the Volokh Conspiracy.

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