For decades, the Supreme Court has understood the Free Exercise clause to protect religious individuals and organizations from secular laws that would "substantially burden" their free exercise of religion. Courts have applied a multi-part legal test that, first, looks to whether the law in question is a neutral, generally-applicable law, not one specifically aimed at religious expression. Assuming that a law is neutral in its application, courts then ask two related questions: does the law's burden on religion serve a "compelling government interest," and is it "narrowly tailored" or the least restrictive means to furthering the government's interest? In sum, even a neutral law may not substantially burden religious exercise unless that burden is the least restrictive means necessary to serving a compelling government interest.
The birth control mandate does not pass this test.
First, assuming that the new rule is a neutral, generally-applicable regulation, it undoubtedly imposes a substantial burden on the free exercise of religion. On penalty of fine and federal sanction, the birth control mandate demands that many religious institutions do precisely what their religion forbids them from doing. The Catholic Church, to take an obvious example, requires that "human life must be respected and protected absolutely from the moment of conception." A papal encyclical on the subject prohibits "direct interruption of the generative process already begun," "sterilizations," and "any action which either before, at the moment of, or after sexual intercourse, is specially intended to prevent procreation…" But the HHS mandate demands that Catholic schools, charities, and hospitals, for example, must provide their employees with health insurance plans that pay for contraception, sterilization, and even abortifacient drugs such as Plan B – a demand that effectively forces Catholics to violate either their conscience and their religion, or federal law. As Bishop Kevin C. Rhoades observed, "This is really an unprecedented rule from the federal government attempting to force religious institutions – and others, not just institutions but also individuals—to do things that we consider immoral; things that we consider sinful. In this case, that's providing, through our healthcare for our employees, contraception, sterilization, and even drugs that cause early abortion."14
The Administration's contention that the mandate's burden does not violate the Free Exercise clause because the Catholic churches themselves, for example, would likely be exempt from the rule is a legal non-starter. Catholics, like those of many faiths, exercise and manifest their religious beliefs and callings in a variety of ways, including charity work, social service, education, medical outreach and counseling. The Supreme Court has already rejected drawing an artificial distinction between a church-proper and a church's mission, as if acts pursuant to the religious mission were beyond the First Amendment's protection. In 1987, the Court recognized that "[i]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission."15
Second, a neutral rule may substantially burden religious exercise and pass constitutional muster, but only if the government can show that the rule is the least restrictive means to accomplishing a compelling government interest. That is not the case here, however, where the Administration's only interest, according to HHS Secretary Kathleen Sebelius, appears to be in "provid[ing] women with greater access to contraception."16 Hardly compelling. Today, contraception for both men and women is readily available for those who want it at the local drug store, and it is commonly covered or subsidized by health insurance plans across the country. The statement released by HHS even acknowledges, "birth control… is the most commonly taken drug in America by young and middle-aged women."17 There are few, if any, barriers for women who want birth control. Thus, the Administration's alleged interest in "greater access to contraception" essentially means that it wants to provide free contraception, sterilization, and abortifacients – "free" in the sense that some third party pays for it, whether they want to or not. Such an interest is far from meeting the established definition of "compelling."
Of course, even if providing free contraceptives to those who want them was a compelling government interest, the Obama Administration has not employed the least restrictive means to achieving that end. For starters, if the government wants to distribute free birth control, it could do so on the taxpayer's dime, and use tax dollars to pay for birth control to be distributed by federal agencies such as HHS or the FDA. Under this approach, no religious organization would be compelled to violate its creed or conscience to provide pharmaceuticals or procedures that it believes to be immoral – and so it is less restrictive than the President's mandate.
The Birth Control Mandate is Unconstitutional