The Becket Fund claims Obama’s health care regulation violates federal law.
President Obama’s requirement that religiously-affiliated employers provide insurance coverage for contraception has sparked a number of lawsuits.
The Becket Fund for Religious Liberty filed its fourth suit challenging the Health and Human Services (HHS) rule. The President had attempted to dampen criticism of the regulation through a compromise that would require insurers rather than religious groups to pay for birth control. Nevertheless, many of these groups have rejected the compromise. Additionally, it is unclear how the compromise would affect religious organizations that self-insure.
Although it is difficult to predict the outcome of the Becket Fund’s lawsuits, a statute can be overturned if it appears to target a religious practice, even if it does not do so explicitly. In one well-known case, the Supreme Court struck down a law banning animal sacrifice. The Court reasoned that because it exempted numerous other religious practices, such as Kosher slaughter, the law was specifically designed to target Santeria and thus constituted “religious gerrymandering.”
In a recent case bearing important similarities to the HHS controversy, a federal judge in Washington State found that a regulation requiring pharmacists to dispense contraceptives violated the constitution. The judge held that the presence of exceptions for secular conduct—but not for religiously-motivated conduct—displayed an unconstitutional, anti-religious intent.
The HHS regulation exempts churches, synagogues and other houses of worship from the contraceptive coverage requirement, and the healthcare law exempts employers who have less than 50 employees from providing health insurance at all. The Becket Fund claims these exemptions will keep employers of millions of Americans from being required to provide coverage of contraceptives while requiring religious non-profits to provide such coverage. The group argues that the lack of an exemption for religious employers proves anti-religious intent.
The Fund also argues that the HHS regulation violates the Religious Freedom Restoration Act (RFRA). The RFRA provides that “[g]overnment may substantially burden a person’s exercise of religion” only if a law “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” The RFRA does not define “substantial burden,” and the few appellate courts that have interpreted it have adopted varying standards.
With the Becket Fund’s litigation based on both statutory and constitutional grounds, the controversy over the HHS contraceptive coverage mandate is not over yet.