Is the Contraception Mandate Constitutional?


Churches that preach the immorality of contraception are excused from federally imposed obligations to promote the practice. But federal law will soon require that the employees of hospitals and other charitable institutions run by such churches—notably, the Catholic Church—have the option of adding coverage for contraception to the health insurance offered by their employer. Whether or not the cost of such coverage is passed to insurers, the question remains, does the requirement violate the First Amendment guarantee of “free exercise” of religion by such churches?

Let us suppose the formation of a new religious sect centered in, say, Florida. Seeking novel forms of worship, the sect, misunderstanding Exodus 32:1–6, elects to pray to a golden calf, made of melted jewelry donated by the faithful.

Like Moses descending from Mount Sinai, the state legislature is appalled. A statute is passed making it a felony to melt gold for this purpose. Leaders of the sect persist, and an indictment is brought against them. The leaders move to dismiss the indictment as a violation of the free-exercise clause. The result, surely, is dismissal of the indictment. That is the constitutional law received from the Supreme Court in Lukumi Babalu (1993), in which the practice of animal sacrifice by the Santeria religion, a Cuban synthesis of African and Catholic rituals, was protected from the prohibition of the statute.

Now suppose that the gold reserves of the United States are suddenly depleted (as happened in the 1960s). To strengthen gold holdings, Congress enacts a statute mandating the prompt sale by citizens to the Treasury of all gold objects for a fair price. An incidental effect of the statute is to prevent the melting of gold by the new sect. An indictment of violators follows. Again, the accused move to dismiss on the strength of the free-exercise clause. What would the outcome be?

In Employment Division v. Smith (1990), the Supreme Court decided that Oregon state employees who used peyote, a hallucinogen, for religious purposes, could be dismissed and denied unemployment compensation for violating a general prohibition on the use of such drugs.  Justice Scalia, speaking for the Court, approved the denial of compensation. “We have never held,” he said, “that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” That is, a lawful, generalized prohibition is not rendered unconstitutional when incidentally applied to a particular religious practice. (In 1993, Congress, displeased with the result in Smith, attempted to impose a stricter standard—42 U.S.C. § 2000bb-1. It was held unauthorized by the Fourteenth Amendment.)

Let us assume that the Affordable Care Act is a valid exercise by Congress of the commerce or taxing-power authorizing insurance coverage for general health care (an issue shortly to be decided by the Supreme Court). The new health-care law would then, as in Smith, involve “conduct that the state is free to regulate.” That would seem to legitimate the obligation of Church-run institutions to make available to their employees insurance with coverage for contraception. 

That the new requirement imposed on church-related institutions would not violate the free-exercise clause will not stop opponents from asserting the opposite. We are passing through an intensely political moment in our history, and opponents of the requirement may be expected to try to beat down the government’s proposal, aided by the complexity of the issue. The outcome is uncertain.

Related: Contraception Cudgel, by E. J. Dionne Jr.

Bad Reaction, by the Editors

About the Author

Joseph D. Becker, a founding partner of Becker, Glynn, Melamed and Muffly, a Manhattan law firm, is author of The American Law of Nations (Judis).



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One wonders whether this analogy might be carried to this end: Might Churches themselves be compelled to pay for such coverage, as their payment neither implies consent nor is necessarily rendering formal aid -- the onus being only on the adherent, (the Catholic employee herself) not to request the contraception or the abortion?  Catholic employers in secular enterprises don't seem to be held in formal complicity by offering these provisions in their healthcare plans.

The Constitution is vague and malleable.  It is interpreted according to the climate of the times.  I suppose it's quite possible that a decision would go against the conscience and religious-freedom position.  Then, the ball would clearly be in Congress's court.  If Congress failed to act, a lot of people would be in a serious moral and legal pickle.  I imagine a lot of religious authorities are busily thinking the unthinkable.  

When American liberal politicians take the stand that traditional Catholicism must bow to the state, we've had a sea change.  It looks as though this can only get worse.

Your magazine gets more and more outrageous the more I read it. You seem to be most desperate to commit sin, to justify that sin and to even draw others into it.s You claim to be a "Catholic" (and I use the term loosely) publication and as such you must realize that this claim makes your primary responsibility "allegiance to the Church" which would trump any "allegiance to the State." Once you would start to use your citizenship as a weapon against the Church and its teachings you will have "ipso facto" excommunicated yourselves as you would have betrayed your calling and played the Judas. It would seem to me that it is your desire to make your participation in the State your religion with politicians as your priests and abortion, I would speculate, as the Sacrifice you would offer with free-sex as a "rite" that must be protected. Any interference with that would be heresy which of course must be punished. As you have cast a state legislature in the role of "Moses," who, then, would be the "worshippers of the Calf...?" I would maintain that "they" could be YOU! You certainly don't like Moses (any State government) because he could interfere with your "new" religion. Hence, the President becomes your "rescuer," your "champion of Centralized Government" versus States' rights. He will undo the "oppression" and free you to pursue the lifestyle which you covet! 

Joseph Becker and John Plick offer two imaginative scenarios in re the much discussed contraception mandate.  The differences between them are, among other things, that Becker sticks to the realm of legal precedent, while Plick ignores not only that but the responsibility and relative autonomy of government to construct a legal order that serves the common good as much as may be possible in a state governed by the consent of its free citizens.  Among the rights the latter enjoy is freedom of religion.  Here the state cannot simply take directions from a Church, especially, I may note, when, as is the present case, the Church in question cannot come to a consensus within itself.

Mr. Becker,

Is this really what your brief for the government would look like in such a case? Where is yourresponse to the argument that the mandate is not generally applicable law because of the various other exceptions and exemptions granted for secular purposes, which were not present in Smith? Where is your analysis of the implications of RFRA, which applies pre-Smith jurisprudence to federal regulatory action that impairs religious exercise? I really expected more from this article when I clicked on the link in my e-mail. Could Commonweal not find an attorney with a better understanding of the relevant issues or law professor like Professor Kaveny to write this article? 

Though portions of the HHS Mandate may be written in a constitutional manner, First Amendment scholar, and Bishop, Thomas J. Curry, notes that the unconstitutional portion of the mandate concerns the narrowness of the exemptions which violate the First Amendment by defining the term ‘religious organization’ according to government standards.

More on Bishop Curry's thoughts may be found at Guess What? Parts of the HHS Mandate Aren't Constitutional.

One is left to wonder how, a hierarchy as far removed from the collective sense of its communicants on an issue that in any practical world, and at any time in history, has been one preeminantly of individual conscience, can decide it will launch a "burn the fields" (ours not theirs by the way) resistance movement?

While perhaps clever, the example of the golden calf is telling more for its datedness than its legitimate correlation to present events. There is a reason that our currency is no longer linked to a gold standard and it is basically the same reason that our constitution incorporates the First Amendment.

Important personal freedoms cannot be guaranteed by linkage to non-negotiable positions such as that taken by the Bishops. Clearly the USCCB "Just doesn't get this freedom of religion thing."

"Don't expect legal protection for taking an illegal substance though it is used in religious rituals." vs. "You must pay for birth control, though you have a long-standing religious doctrine and moral stance against it and even though in the vast majority of cases it has nothing to do with health care but only with an optional activity."Hmmm.... doesn't seem like a really good parallel to me.

This is a seriously misleading article because the author does not address what will surely be the central legal issue: not whether the HHS mandate violates the Constitution, but rather whether it violates the Restoration of Religious Freedom Act, which was enacted precisely to counteract the Supreme Court Smith decision Mr. Becker relies upon. Under RFRA the government must show that there is a "compelling need" for the mandate and that there is no less burdensome method available to meet that need. Smith rejected those tests; Congress restored them. Of what possible interest is it to discuss Smith when the case will certainly be decided on the basis of RFRA, not Smith?

Mr. Becker, your views address an issue that has received little attention from dotCommonweal’s critics. It is true that current federal regulations will deny Catholic hospitals and other charitable institutions a choice of health insurance policies that deny women contraceptive coverage.


However, our Catholic Bishops object: they challenge the exemption for “religious employer” as too narrow — they want to expand it by a definition broad enough that voids contraceptive insurance coverage for every employer that rejects it. The objection is not defensible; regulations cannot nullify provisions of the Affordable Care Act that call for such general coverage.


Others argue that the existing regulation violates the rights of employers under the Religious Freedom Restoration Act of 1993 by creating an exemption that is too narrow. This argument is refuted by the Act itself: the law states, “As used in this section, the term “granting”, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.” 42 USC § 2000bb-4.


This article is seriously deficient.  I cant imagine any reason why it was published unless its supposed to be a letter to the editor.

I don't think any of the examples provide a very good parallel.  At the heart of the issue here is that unlike the peyote case, religious people are being forced to participate in a sin, not being denied protection for a religious actuivity which is otherwise illegal.

I think another valid test to see if something violates the free exercise of religion is the one by the RFRA.  Was the policy enacted in a way that infringes on free exercise of religion when it could have been enacted in a way that does not?  The fact that this mandate was crafted in a way that seems to specifically target Catholic institutions, that seems to specifically to force Catholic institutions to choose sides, the state or the Church, when the same result could have been achieved without targetting Catholic religious liberty so directly certainly does not seem to meet that test.

For me, that is the critical fact.  This was done in a way that seemed to specifically create a wedge in the Catholic population:  accept state teaching about contraception or accept Catholic teaching .. or offer just one pinch of incense if you like.  This targetted employers, not insurance plans, not insurers (although the as-of-yet-unenacted accommodation would have targetted insurers), but employers.  It targetted the link in the insurance chain that was the most likely to have a religious objection.  The administration that came up with that was either utterly tone-deaf to the religious, especially the Cathlic, faithful or was taking aim at the Church.

No doubt, there is much more to the contraception mandate than the Smith Case, as there is a difference between a religious practice and a Religious Doctrine which is infallibly taught.

" -- religious people are being forced to participate in a sin -- "


And exactly what sin would that be?  No one is forcing them to practice or purchase contraception.

What if the church decided that the current or next war does not meet the test of the Just War theory and, as such, is immoral.  Will religious people be allowed to pay taxes that support said war?  As members of the military, would they be obligated to refuse to serve?

Or would that fall under the great theocon copout of "prudential judgement?"

I believe that for the Bishops the issue isn't contraception per se; it is abortion. If one's religion dictates a belief that a death will result in the use of a religious organization's money then it is a violation of the Constitution. The argument in the Catholic Church itself of whether the drugs are ultimately contraceptives or abortifacients. Persident Obama's compromise is based on the opinion nearly all scientists hold that Plan B is contraceptive not abortifacient. It was approved in most countries as a contraceptive because it forestalls or interrupts ovulation. Thus the drug does not act on a fertilized egg, so there is no conception. The original committee that made the recommendation to Pope Paul operated with this belief and felt the control of ovulation was not contraceptive any more than the rhythm method. The Pope (heavily influenced by the future Pope John Paul II) disagreed with the committee and believed that if there was even the remotest chance that The Pill worked to abort a fertilized egg then it should be prohibited by the Church. The American bishops believe that the Morning After pill is a potential abortifacient and thus are taking a hard line against Plan B contraceptives. I would speculate that they may have been more open to Obama's compromise if they believed the Morning After pill was not abortifacient, just as many Catholic hospitals and organizations have.

There are many complex issues involved. The one that I believe all Catholics should rally behind to oppose is the assumption that a secular government has the right to define "the ministry of a Church" to suit the government's purposes, contrary to tradition, societal norms and common sense. Using far-fetched, cult-like examples to represent an equivalent to the Church is misleading. The Catholic Church's ministry has extended to healthcare, charity and eductation for millenia. To have the government now try to narrow that ministry to only the worship sphere and to services to professed Catholics is an outrageous over reach of government power and should be disallowed as a clear breach of The First Amendment.

This was perhaps the most obtuse argument I've ever heard. Is this meant to be a real debate or some journalist trying to sound clever. Silly, yet stupid. score up common wheel and start forming cogent thoughts those of use who are college educated wont laugh at.

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