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Unpublished Paper
"RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion"
ExpressO (2013)
  • Frederick Mark Gedicks
  • Rebecca G. Van Tassell, independent scholar
Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice. While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their health insurance premium. Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate. The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti- contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest. Part I summarizes the legal mechanics of the mandate and briefly describes the three classes of anti-mandate plaintiffs—churches, religious nonprofit organizations, and for-profit businesses owned by anti-contraception individuals. Part II details Establishment Clause doctrine that prohibits permissive accommodations that impose material burdens on third parties. Part III applies this rule to RFRA exemptions from the mandate, showing that the cost- shifting entailed by such exemptions violates the Establishment Clause. We conclude that the existing regulatory regime that exempts churches, accommodates religious nonprofits, and leaves for-profit businesses subject to the mandate is the proper balance of private and government interests in the radically plural society that the United States has become.
  • Affordable Care Act,
  • contraception mandate,
  • Establishment Clause,
  • Free Exercise Clause,
  • permissive accommodation,
  • religion,
  • Religious Freedom Restoration Act,
  • religious liberty
Publication Date
September 21, 2013
Citation Information
Frederick Mark Gedicks and Rebecca G. Van Tassell. ""RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion"" ExpressO (2013)
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