Misconceptions about the Obama Administration’s Contraception Mandate for Religious Employers

by Hans Bader on February 14, 2012

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

There are a number of misconceptions about the Obama administration’s recent rule requiring employers’ health insurance policies (including those of religious schools and hospitals) to cover contraceptives and certain abortifacients. First, as a commentator notes, it’s not true that states in general already require such coverage:

HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief.

Second, it’s just not true that the Obama administration’s rule must be legal because it is supposedly modeled on state insurance rules in states like California. Under basic principles of federalism, there are things that states can require, but the federal government, which has only enumerated powers, cannot. The Religious Freedom Restoration Act (RFRA) limits the federal government’s ability to regulate religious employers (under a 2006 Supreme Court ruling that makes clear RFRA’s vitality as applied to limits on federal law), but not the states‘ ability to regulate (the Supreme Court struck down the portion of the Religious Freedom Restoration Act that applied to state and local governments in 1997, citing principles of federalism, but left intact RFRA insofar as it limited the federal government’s powers). So a state contraceptive mandate can be perfectly valid even if a federal one would not be as applied to religious institutions. Indeed, the Obama administration’s rule appears to violate RFRA. (CEI has also explained in court briefs why Obamacare’s individual mandate exceeds Congress’s enumerated powers and thus is unconstitutional; why its coercive and indefinite Medicaid expansion provisions violate principles of federalism; and why Obamacare’s unconstitutional provisions are not severable from the balance of the law.)

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