Will a Legal Challenge to the Contraception Mandate Succeed?

The Obama Administration hasn’t even promulgated its new compromise contraception rule, and already plaintiffs are rushing in to challenge it.  Since the regulation isn’t even out yet, these challenges will fail (because the litigation is not “ripe”), but eventually that will occur, and some court might have to look at the issue on the merits.  Will the plaintiffs win?

I don’t think so.  Most observers have pointed to the Supreme Court’s opinion in Employment Division v. Smith, which states that a law does not run afoul of the Free Exercise Clause if it is a “neutral law of general applicability,” but that isn’t quite right, in my view.  Shortly after Smith was handed down, Congress passed the Religious Freedom Restoration Act.  RFRA purported to re-establish the previous constitutional standard (which Smith had overturned), from a 1963 case, Sherbert v. Verner. In Sherbert, the court held that if a law “substantially burdens” the exercise of religion, then the government must provide an exemption unless it can show that adherence to the law is “necessary to achieve a compelling governmental interest.”  Theoretically, that’s a much tougher test; could the Obama rule survive it?

I think it could: there is a decision considering an issue very close to what plaintiffs would challenge with the Obama rule.  The key case is a 1982 US Supreme Court decision, United States v. Lee.  There, a group of Amish claimed that paying Social Security taxes violated their religious beliefs.  The Supreme Court unanimously rejected their claim.  The majority opinion, written by famed left-wing radical Chief Justice Warren Burger, applied the Sherbert test, and quickly concluded that even under this more exacting test, the Constitution does not require a religious exemption.

The Court acknowledged that the Amish were substantially burdened by the government’s insistence that they pay Social Security taxes, but it essentially did not matter.  The Court’s justification applies almost perfectly to the Affordable Care Act:

Because the social security system is nationwide, the governmental interest is apparent. The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees…The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system….Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.

Well, couldn’t the government have granted the Amish an exemption?  No, said the Court, again for reasons that track perfectly onto the ACA:

It would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference – in theory at least – is that the social security tax revenues are segregated for use only in furtherance of the statutory program. There is no principled way, however, for purposes of this case, to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.  Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.

No doubt, plaintiffs will try to distinguish Lee, but they will be weak attempts.  They will say that the ACA is not a comprehensive system like Social Security, so a few exemptions here and there won’t matter.  But if anything, the ACA’s role as a gap-filler on top of the employer-driven system means that its actuarial necessity is even greater than that of Social Security. Plaintiffs will also argue that the health insurance mandate is not a tax, as plaintiffs have done to challenge the ACA outright.  But whether or not that is true, it isn’t relevant in terms of the compelling governmental interest in keeping the system actuarially sound.

Maybe the best way to get around Lee will be to argue that it didn’t really apply the Sherbert test: Chief Justice Burger’s opinion, challengers will say, gave short shrift to what a “compelling” governmental interest really requires (at times, it doesn’t even say “compelling” but rather “overriding,” if one thinks that that matters).  Indeed, this is the reason why Lee was not unanimous: Justice Stevens concurred in the judgment because he agreed with the result, but argued that the majority’s “reasoning supports the adoption of a different constitutional standard than the Court purports to apply.”  When the Court considered Smith several years later, many scholars argued that the Court had never really applied the Sherbet standard because insisting on religious exemptions in virtually every situation would have caused chaos.  But Lee is still on the books, and 8 out of 9 justices held that it applied the Sherbert standard.  If precedent means anything, then Lee applies.

In any event, Lee is in my view a very powerful argument for the legality of the rule.  There, the government made no exemptions for the Amish, and the Court still upheld the law’s application.  Here, the Obama Administration has completely exempted actual religious employers and crafted a workaround for religiously-affiliated institutions so that insurers and not they are paying for the contraception coverage.  If the government didn’t have to do anything in Lee be okay, how could a Court say that the exemptions in the contraceptive rule are not good enough?  If your answer is “John Roberts” and “Samuel Alito,” then that would be just one more example of how the Right should shut its trap about “judicial activism.”

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

25 thoughts on “Will a Legal Challenge to the Contraception Mandate Succeed?”

  1. I don’t think that argument will work. It would not be social security vs. the ACA in its entirety, but social security vs. the contraception measure in a regulation pertaining to ACA implementation. If you want to argue a compelling government interest for accessible contraception, you’d have to make a different case.

    The following excerpt from United States v. Lee makes a more compelling argument (at least in my opinion):

    “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

    In general, I think it’s bad public policy if some groups (churches or otherwise) get to cherry-pick the aspects of a legislation they like. And for Catholic employers, in particular, having part of their health insurance contributions used for contraception is doctrinally unproblematic under the principle of double effect.

    1. @Katja —

      “I don’t think that argument will work. It would not be social security vs. the ACA in its entirety, but social security vs. the contraception measure in a regulation pertaining to ACA implementation. If you want to argue a compelling government interest for accessible contraception, you’d have to make a different case.”

      I don’t think so. The principle at stake is whether someone can opt out of a particular ACA coverage mandate on religious grounds. The issue is program integrity. The Court would see that allowing Catholic-affiliated hospitals to opt out of one provision might mean thousands or tens of thosuands of employers opting out of one provision or another. Doing that would disrupt the structure of the program in the same way that religious groups opting opt of Social Security would. The Lee Court addressed the possibility of an exemption for just the Amish, but said, quite properly in my view, that the issue is whether extending this principle would defeat the government’s compelling interest. And just as propoerly, they said that it would.

      Your quote from Lee is quite apt, but it really is a statement of Employment Division v. Smith: this is why Justice Stevens realized that to the extent that the case turned on that idea, a different standard is called for.

  2. Look, can we get away from this pretense that there’s some sort of compromise? A lot of churches and church institutions self-insure, they ARE the insurers the mandate will apply to. Ordering insurance companies to not pull a particular service out as a line item doesn’t mean you’re not paying for it. And, from what I’ve heard, not a finger has been lifted to actually implement this supposed compromise, the regulation still stands unchanged.

    And, where did the President get the authority to order a private company to hand out some of it’s product for free, anyway? Does this not strike anybody as problematic, or do you just generally assume the President is a dictator who can issue any sort of order that strikes his fancy?

    The bottom line, I think, is that nobody who found the regulation objectionable is going to find the ‘compromise’ solves anything. It’s a fake compromise, and no shocker that.

    1. Brett,
      Please stop playing games like “churches and church institutions”. Churches are exempt, as are religious institutions. Other church-affiliated institutions – hospitals, for example, which are often enormous enterprises – are not exempt. You do no-one any favors when you try to muddle this.

      I will admit that I’ve no idea where the administration got the authority. But it’s telling in a couple of ways that you decide to insinuate it’s Obama acting as dictator, rather than his administration deciding on how to implement an existing law. Given that no-one with any power seems to have been making the argument that he lacks the authority, I’m assuming this power is part of the law. Why are you assuming differently? Don’t you think if there were even a question of whether a legal basis exists you’d have heard of this by now?

  3. Brett: I think I speak for most of us here in saying, apology accepted, but not needed. Your comments are easily recognized, even without the identifier.

  4. Actually, as an occasional lurker, I appreciate Brett’s apology.

    SpeakIng to the President as dictator question, perhaps the law that requires hospitals treat anyone that shows up at the ER is an useful analogy. Any hospital that receives Medicare funding is required to provide service without guaranteed reimbursement. The PPACA requires that individuals receive free birth control pills, so the executive has the authority to determine how the regulated industry must fulfill that requirement.


  5. Stare Decisis? What’s that?

    The court finds undue burdens on free exercise for religious groups it likes, and not for ones it doesn’t.

  6. Interesting note is that Lee only applied to Amish employers of non-Amish employees. Form 4029

    Note that the language of 4029 is explicitly group-based: “This religious group is recognized as … providing a reasonable level of living for its dependent members, and as being conscientiously opposed to public or private insurance.”

  7. How about the other branch of the Sherbert test, the “substantial burden” on the exercise of religion? If the law required traditionalist Catholics to practise contraception, or Amish to ride motorbikes, these would be substantial burdens. But it doesn’t. What sort of obligation might Catholics be under in relation to my use of contraceptives? Just possibly, to try to argue me out of it, but you will note that zero effort ic currently put by the hierarchy into such third-party efforts (contrast abortion). The employer case must be an argument that if a Catholic accidently acquires authority over other people, for example as an employer, he or she is supposed to use that authority opportunistically to impose Catholic moral teachings outside the workplace. Who said so and when? Prima facie, it’s a frivolous estension of the right to religious freedom.

  8. What sort of obligation might Catholics be under in relation to my use of contraceptives?

    My understanding of their understanding of their obligation is: not to provide them.

    1. Of course, that’s the problem of turning this moral dilemma on its head.

      From the employee’s perspective, health benefits are like wages. If I, as a (hypothetical) employee of a Catholic university or hospital want to spend my wages on sin, that’s my business not theirs. Ditto, I would think, for my health benefit.

      To get to a perspective, where this alleged moral dilemma even makes superficial sense, one has to adopt a view, where the rights and preferences of employers dominate those of employees. This kind of authoritarian paternalism is among the desiderata of the Right, and Obama, as always, appears to be doing his best to rouse the Dem Tribe to moral outrage, while legitimating the agenda of the conservatives.

      As for the Courts, the guiding light going forward will not be precedent but authoritarianism. Corporations are people, and their rights know no bounds, but people are not people and should go screw themselves, and pay for their own damn contraceptives, and their own damn health care, too, so that we can have “markets” in everything.

      1. the rights and preferences of employers dominate those of employees.


        As for the Courts, the guiding light going forward will not be precedent but authoritarianism.

        Perhaps, but it is not certain. I suspect it is likely.

    2. Putting a condom vending machine in the factory toilet might be “providing” contraceptives. But employers don’t provide health care outside narrow occupational problems, the armed forces, and remote mining camps. Paying for an insurance policy, the terms of which are defined by a notion of professional good practice, is not “providing” health care.

      One thing I like about the Obama accommodation is precisely that it weakens the spare-wheel or visual illusion role of employers in US health care.

  9. I don’t think Lee works with the rule on the books because at issue in Lee was the use of the taxing power, and not as administrative regulation forcing direct expenditures by a private entity. An employer could not object to paying the penalty for filing to provide insurance on the grounds that some of it would fund contraception, abortion, or whatever, but can object to having to spend its own money on such coverage. (Note that in some cases — where institutions self-insure — the employer and insurer are the same, so the employer is paying for the contraception directly.) This distinction is one we see under the First Amendment all the time. So, for instance, there’s no need to provide a religious exemption for Medicare taxes, but even under Smith there’s an obligation to provide an exemption for the individual mandate. Similarly, the government can tax us to fund government speech that’s objectionable, but can’t force individuals to directly fund speech they find objecitonable (see, e.g., United Foods and Johanns).

    So, unless and until the administration promulgates a compromise of the sort the President outlined — and it has not done so, though the rule creating the contraception mandate has been finalized — I believe this will make the difference and the rule will fall under RFRA. Indeed, if it makes it up to the Supreme Court, I would expect at least 7 votes against it.

    One other thing, there’s no evidence in the rulemaking record that HHS made any effort to consider RFRA to any extent or to consider alternative ways of increasing contraception coverage (and HHS has acknowledged it never consulted the Justice Department on the question). This is not likely to impress the courts that there was serious consideration of this question.


    1. I don’t understand your distinction, Jon. Whether or not you find the mandate objectionable, it isn’t funding speech: it’s funding payment of a product. So I don’t see where United Foods is inapposite. Ditto with whether or HHS considered or didn’t consider RFRA: from a First Amendment perspective, I don’t see how it’s relevant. And ditto with the taxing power: that might have some purchase under the Commerce Clause (although I don’t think so in the ACA context), but the point is the same: the government has established a broad-based regulatory scheme to provide for insurance. A religious says that supporting it would violate its religion. The Court in Lee said that that doesn’t matter, because the actuarial basis for Social Security is a compelling governmental interest. It could say that the actuarial scheme in the ACA is not, but that would have more to do with the Four Horseman, not the precedent. Conservative judicial activism rides again, I suppose.

      1. The distinction with Lee is the distinction between being forced to pay a tax that the government uses in an allegedly objectionable way (whether for something religiously objectionable, violating a speech interest, etc.), and being forced to pay for/participate in the objectionable thing directly. This is the distinction between making Catholic employers pay taxes that fund, inter alia, contraception and making them pay for contraception coverage directly. The former creates a substantial burden on religious institutions, the latter does not (much like forcing a Quaker to buy a gun to participate in the militia would create a burden that forcing the Quaker to pay taxes that fund, inter alia, wars, does not.) A broad-based regulatory scheme may be facially valid, but not valid as-applied to those with particular religious objections under RFRA – and RFRA imposes greater scrutiny on federal actions that burden religion than the First Amendment does on commercial speech (hence the relevance of the United foods/Johanns example).

        You may not agree with this distinction, but I’d be willing to wager it is a distinction the courts will readily accept if the mandate is not revised.


        1. When legal scholars start using the word “directly,” they/we are on very weak ground. What is the difference between paying a tax to the government to fund contraceptives and paying a premium to a private insurer to fund contraceptives? Neither one is any more “direct” than the other. For that matter, what is the difference between paying a premium to an insurer, which it might use to cover contraception and paying an employee a wage, which she might use to pay for contraception? I fail to see how any of these payments are more or less “direct” than the other. It is not clear to me what precisely it means for an employer to be a “self-insurer” in this context: usually we speak of employers “self-insuring” as to matters of liability. Maybe I don’t know enough about the Catholic Church, but it would at least surprise me a little if its employees’ doctors and medical bills are paid for by the Church itself. I genuinely don’t know about that.

          And if it is a distinction that John Roberts and Samuel Alito wil accept, then yes: one more example of right-wing judicial activism. I’ve never been under any illusion that any of the Four Horsemen care about precedent.

          1. You may not think paying a tax to the government is any more “direct” than paying a private third party at the government’s command, but the courts do. This was part of the point of mentioning United Foods an Johanns, which are premised on such a distinction. It’s why the court upheld the law in the latter but not in the former. I understand an argument that this distinction should not matter in the case of religion, but it’s a distinction that courts already recognize.

            As for the distinction between paying the insurer and paying the employee, the purpose of paying the employee is to compensate the employee for the work he/she does. The purpose of paying the insurance company it provide for a prearranged range of coverage — and, if the government requires covering treatment X, part of the purpose of the payment is to cover to cover treatment X. So, in the contraception case, the purpose of paying the insurance company is to pay for contraception.

            As for what it means to be a “self-insurer,” it means that the company is playing the role of both employer and insurer (although some companies that self-insure use separate companies for the administrative aspects). In other words, companies that self-insure actually provide the insurance coverage tehmselves (i.e. collecting the money that would have gone to premiums and paying out the claims directly). This is how some religious institutions (and, FWIW, some non-religious private universities) avoid state-level mandates, as self-insuring can bring a company under ERISA (and remove them from state mandates). This is why HHS has promised to address the particular circumstances of “self-insured group health plans sponsored by non-exempted, non-profit religious organizations with religious objections to contraceptive coverage.” Because such institutions are, in effect, both employer and insurer, the announced compromise does not provide them with much relief.


        2. And by the way — I think you can see that the example of “forcing a Quaker to buy a gun to participate in the militia” doesn’t really work, either. The key there isn’t the buying of the gun: it’s the participation. If the regulation said that everyone in a village had to contribute to a fund to purchase weaponry to defend the village, then that would be no more “direct” than — paying a premium to an insurance company to provide health insurance, which might be used to provide contraception.

          1. Except the Court has said that paying an industry association to pay for ads to promote your industry is more direct that paying taxes to the government for the same purpose.

          2. But once again, I think it’s irrelevant. In Lee, the Court acknowledged that payment of taxes constituted a “substantial burden” on the Amish religious beliefs. But it also said that the government interest in maintaining the fiscal and administrative integrity of the Social Security program was a compelling interest, and thus there was no free exercise violation even under strict scrutiny. And it also said that arranging for the myriad exemptions would defeat the government’s compelling interest. So whatever the power of any distinction between “direct” and “indirect” payments, it’s really not apposite. Grant the substantial burden: Lee says that in the context of a nationwide social insurance program, the compelling interest trumps. Bootstrapping a doctrinal argument from another doctrinal line won’t change that.

  10. It seems Citizens United gave corporations (in addition to free-speech rights ) the ability to go to Hell, sin, get pregnant, have abortions, etc.

    That hospital is going to be in some Big Trouble when God finds out that it took contraceptives.

    It’s amazing what conferring a little personhood will do!

  11. Religious Freedom Restoration Act overturned United States v. Lee.

    The following website contains a link for an Excel spreadsheet that contains 3127 exemption to paying Social Security and Medicare tax from 2/3/1966 to 10/7/2009 under “religious conscience objection” in Section 1402(g)(1) of the Internal Revenue Code. Amish are morally obligated never to participate in Social Security or Medicare.


    There is no basis for court cases for the contraceptive mandate under the Affordable Care Act because Obama exempted all religious organizations that object under religious claims, which is not applicable to current state law mandates.

    In 1997, the Supreme Court, in City of Boerne v. Flores, found that the application of the Religious Freedom Restoration Act to states is unconstitutional, but the law is still in effect at the federal level. At least two states, California and New York, continue to use Employment Division v. Smith in contraceptive mandates. The US Supreme Court refused to hear Catholic Charities contraceptive mandate appeals in 2004 and 2007; thereby, upholding Employment Division v. Smith at the state level.

    The power struggle between Congress and the US Supreme Court has resulted in unequal application of religious freedom exemptions.

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