On March 25, the Supreme Court will hear oral arguments over whether the Affordable Care Act’s (ACA’s) requirement that for-profit companies cover contraception—commonly called the contraception mandate—is legal.  Thus far, most public debate, scholarship, and litigation over the ACA’s contraception mandate has focused on two questions: whether for-profit corporations are entitled to religious protections, and does the mandate so intrude on religious practice that the law should accommodate companies’ beliefs through an exemption from the law?

There is, however, a different, equally important question: to what extent does the law permit religious accommodations to impose health burdens on third parties?  Failing to accommodate owners’ religious objections to the contraception mandate will impede their sincere religious beliefs, but accommodating them will limit workers’ access to contraception and increase the frequency of unintended pregnancy and abortion.

Ours is a society that, in embracing Constitutional rule of law, protects the right to worship freely (or not at all) and simultaneously seeks to govern collectively for the public’s health and welfare.  Exemptions from the contraception coverage mandate place these values in tension.  When, however, the law creates religious accommodations that subordinate third parties’ important interests to someone else’s religious beliefs, the law violates the Constitution’s Establishment Clause and should be invalidated. 

The ACA’s Contraception Coverage Mandate

The ACA requires most employer-supported health plans to cover certain preventive care—such as vaccinations and HIV screening—without copayments, deductibles, or cost-sharing. This includes all FDA-approved contraceptive methods and sterilization procedures prescribed for women—including oral contraceptives, intrauterine devices, implantable devices, barrier methods, and emergency contraception—but not abortifacients.  Failure to provide these by the beginning of 2014 will result in a $100 per day tax penalty for each affected employee.

At the same time, most employers must provide health insurance that is both adequate and affordable. If the company does not offer insurance and any employee receives subsidized insurance on an ACA exchange, the company will be fined $2,000 per employee per year.  There are similar penalties if the company offers insurance but it violates affordability rules. Taken together, employers must offer adequate and affordable health insurance that covers the full cost of contraception or face substantial penalties.

There are, however, a few exceptions.  First, small businesses—companies with less than 50 employees—do not have to provide any coverage. Second, purely religious employers—nonprofit houses of worship or religious orders—are exempt from the contraception mandate. Third, employer-sponsored plans that have had essentially the same costs and benefits from before the passage of the ACA are “grandfathered” and exempt from the contraception mandate and most other ACA requirements. It is expected that, over time, economic incentives will cause grandfathered plans to disappear, but they were intended to ensure that employees could keep their current coverage.

Finally, certain religious organizations organized as non-profits—such as universities and hospitals—receive an accommodation whereby women are offered contraceptive coverage at no extra cost managed by third party administrators; though the religious organization does not have to pay for contraception coverage, it does have to identify an insurer. None of these exceptions, however, apply to large, non-grandfathered, for-profit companies.

Almost 50 legal cases have been filed against the contraception mandate by for-profit challengers. (Another 45 cases have been filed by non-profit challengers, but they raise somewhat different questions and will not reach the Supreme Court for at least another year.)  Corporate challengers seek accommodations, by which they would be able to continue providing insurance that does not cover contraception, and the government could not levy penalties on these companies.

At the same time, women who desire insurance coverage that includes contraception would not be able to get it from their employers and would not be eligible to receive subsidized coverage on the state or federal insurance exchanges because their employers offer legally sufficient insurance. For some who could not afford unsubsidized insurance—which will cost an average of about $4,000 for a mid-level plan on the insurance exchanges—out-of-pocket payments for adequate contraception would be impossible or at least costly.

Is The Court Likely To Grant Contraception Mandate Accommodations?

Before the Court could grant an accommodation, it must make two determinations.  First, that secular, for-profit corporations can exercise religion and, second, that either the 1st Amendment’s Free Exercise Clause or the Religious Freedom Restoration Act (RFRA) requires accommodations to be given to particular companies.  The first issue has been covered well by others. While there is ample reason to doubt whether for-profit companies should be entitled to religious freedom protections, most appellate judges to consider this issue have ruled either that for-profit companies are entitled to religious protections or that requirements imposed on certain types of companies implicate their owners’ religious freedom.

There is, however, little chance that the Court will find employers to be protected by the Free Exercise Clause. Since 1990, the Supreme Court has ruled that the Constitution does not require governments to provide religious accommodations to neutral, generally applicable laws. This means it is constitutionally acceptable to incidentally burden religion so long as a law does not, on its face, single out a religious practice for regulation.  In some instances, a purportedly neutral law is covertly designed to target a religious practice—as with a Florida city’s law against ritual animal sacrifice that in fact was intended only to impede Santeria—and therefore unconstitutional. For the contraception mandate, however, no evidence of such ill intent exists.

Similarly, some challengers have argued that other exceptions to the mandate—such as those for companies with less than 50 employees and grandfathered plans—render the law not generally applicable and therefore constitutionally suspect, but this argument misunderstands the Court’s precedents.  As long as distinctions between who is affected and who is not are rational and based on secular considerations, secular exemptions do not offend the Free Exercise Clause.

The Court is more likely to decide the mandate violates RFRA, which Congress passed to restore greater protections after the Court reduced Free Exercise Clause protections in 1990. If a federal law substantially burdens religious exercise, RFRA requires the courts to grant an accommodation unless the government can show that the accommodation prevents it from achieving a compelling interest that cannot be furthered by burdening religion less. Assuming for-profit companies or their owners have protected religious interests, there is not serious dispute over whether the mandate substantially burdens them.  Simultaneously, the Court often treats protection of public health as a compelling interest.

The Obama Administration, however, has to show that its goals cannot be met if courts grant accommodations to the specific challengers requesting them. Often, the courts examine whether other exceptions have been made to a law, and, if so, they are frequently dubious of the argument that a religious accommodation would fatally undermine the government’s goals. Challengers have argued that other contraception mandate exemptions—such as the grandfathering provisions—suggest religious accommodations will not be the difference between achieving the Administration’s public health goals and failing to do so.

Intuitively, of course, one might argue that the ACA tries to balance multiple goals—such as promoting stability in health coverage—and that the other exemptions serve rival goals.  However, the courts tend to interpret RFRA to mean that if additional goals can override the government’s public health interest, so should religious freedom—an interpretation that makes it difficult for the government to prevail. This makes it possible—though not certain—that the Court will decide RFRA requires religious accommodations to the mandate.

Accommodations And The Establishment Clause

If the Supreme Court rules that companies are entitled to accommodations under RFRA but not the Free Exercise Clause, another issue should be addressed: To what extent does the Constitution’s Establishment Clause allow accommodation of an employer’s religious beliefs to burden the health interests of employees?  Though the Obama Administration has not addressed this issue very forcefully, it is central to how the American constitutional system treats the separation of church and state.

The Establishment Clause is the constitutional provision that seeks to relegate religion and government to separate spheres.  Both the text of RFRA and the principle of constitutional supremacy require that an accommodation be invalidated if it conflicts with the Establishment Clause. Whether a law violates Establishment Clause depends on whether it meets a three-part test, developed by the Court in Lemon v. Kurtzman.

First, it must have a secular purpose. Second, its “principal or primary effect must not be one that either advances or inhibits religion,” and, third, it “must not foster an excessive government entanglement with religion.” Failure to meet any of these requirements would invalidate the accommodation, and the first two are potentially at issue for contraception mandate accommodations.

Some scholars argue that accommodations, by definition, have a religious purpose and not a secular one, so all accommodations should fail the Lemon test’s first prong. This position conflicts with court precedents.  To affirm that religion is societally important and carve out space to practice it is not the same as endorsing any particular practice or favoring it over atheism.  The courts almost always find accommodations constitutional so long as they apply equally to people of different religious traditions.

As the Supreme Court wrote in a 1987 case, “This Court has long recognized that the government may (and sometimes must) accommodate religious practice and that it may do so without violating the Establishment Clause.” While this is especially true for accommodations required by the Free Exercise Clause—which place two constitutional provisions in tension—statutory accommodations (such as those created by RFRA) are also widely accepted.

Why, then, are contraception mandate accommodations for secular, for-profit employers constitutionally suspect?  They are, after all, fairly straightforward exceptions from a law that would otherwise burden religious belief and seem similar on their face to accommodations the courts usually accept.  However, most other accommodations impose little or no burden on third parties. Excepting companies from the contraception mandate limits interests to which employees would otherwise be entitled by law, which is an advancement of religion that violates Lemon’s second prong.

In a triad of decisions, the Supreme Court invalidated accommodations that made one person’s substantial interests contingent on the religious preferences of another, which is something the courts consider akin to the government endorsing that religious preference.  In one case, a Massachusetts law allowed schools or houses of worship to object to the liquor licenses of establishments within 500 feet, with an objection resulting in the state denying an application for a license.  The law was intended to insulate churches and schools “from disruption associated with liquor-serving establishments,” an intention that was considered to be secular.  A Harvard Yard bar challenged the law and argued that giving a religious institution a veto over its liquor license was to act with the principal purpose of advancing religion.  The Court agreed and invalidated the law.

Thornton v. Caldora more apropos case because it involves the employer-employee relationship—dealt with a Connecticut law that protected employees from being fired for refusing to work on their Sabbath day. The Supreme Court ruled that, by enabling employees to make their employers conform business operations to an employee’s religious practices, Connecticut’s law had the principal effect of advancing religion.  The Court noted that religious accommodations with “an incidental or remote effect of advancing religion” on others might be permissible but that the Connecticut law would require other employees to shift their work schedules, work on the weekend, and impose economic losses on employers—burdens which were too substantial to pass First Amendment muster.

Finally, in 1982, the Supreme Court considered an objection by a member of the Old Order Amish faith to paying social security taxes for his employees.  The man, a farmer and carpenter, was entitled not to pay social security taxes for himself under a religious exception Congress created for self-employed people.  However, the accommodation did not allow him to avoid withholding for his employees, which he said would require him to participate in a system contrary to his religious beliefs and violate the Free Exercise Clause.  The Supreme Court did not technically decide whether exempting employee withholding would violate the Establishment Clause because it first decided he was not entitled to an accommodation.  However, it strongly suggested that such an accommodation would be unacceptable because “granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on employees.”

From these cases, one can distill certain general Constitutional rules.  First, religious exceptions from generally applicable laws usually have a secular purpose, such as protecting space for conscience in a free society, and will almost always be upheld when they implicate only the interests of the person receiving the accommodation.  This is true so long as accommodations apply equally to people of all faiths with similarly burdened practices and meet Lemon’s other requirements. Second, some religious accommodations create minor burdens on others’ interests.  This is constitutionally acceptable because those burdens pale in comparison to the important public interest of preserving freedom of religious practice. Third, however, the Establishment Clause cannot permit one’s religiously motivated conduct to substantially burden the interests of third parties.  When a statute creates an accommodation that would do so, it is unconstitutional and invalid.

The last situation is the one created when secular corporations are granted RFRA accommodations from the ACA’s contraception mandate.  Such accommodations impose substantial burdens on women’s access to health care services to which they would otherwise be entitled under the law.  A woman whose employer receives the accommodation would have few alternate means of acquiring health coverage that includes contraception.

She would face the choice of paying substantial out-of-pocket amounts—often over $1,000 per year for contraceptive methods over which she has full control—ceasing sexual activity, facing much higher chances of pregnancy, or changing jobs.  Any of these consequences would make her much worse off than her counterparts who receive ACA-guaranteed contraception coverage. The burden would be particularly heavy on the poorest women, whose use of contraception is most likely to be interrupted periodically due to economic hardship.

These burdens are greater than those imposed on co-workers in Thornton—such as having to work weekend shifts—and are sufficient to violate the constitution.  They would not be borne but for religious accommodations; women whose employers do not receive accommodations are not similarly burdened. Making these interests contingent on a third party’s religious beliefs is beyond what the Constitution allows.  (Accommodations carrying minimal burdens for employees—such as those afforded some religious non-profits under the ACA—are probably acceptable.)

Of course, some challengers to the contraception mandate oppose not all family planning methods but rather only emergency contraception or those methods plus IUDs. Accommodating these objections would be less burdensome than accommodating objections to all contraception methods.  Nonetheless, limiting access to these particular approaches would be substantial for many women.  Emergency contraception is the most effective option after sex (or rape), and lacking effective access to it would place a woman in a substantially worse position than her contraception-covered counterparts.

Similarly, long-acting reversible contraceptives—IUDs and implantable contraceptives—are much less likely to fail than alternative methods and are approximately 20 times more likely to prevent unintended pregnancy or abortion. While some women could use IUDs and implants interchangeably, some will tolerate one approach less well than the other—and surrendering this choice to a third party’s religious objections would also be constitutionally troubling.  It is a closer call than accommodating complete objections to contraceptive coverage, but partial accommodations likely still impose sufficient burdens to be unconstitutional.