Doctrine and Deep Structure in the Contraception Mandate Debate

7 Pages Posted: 22 Jul 2013 Last revised: 5 Aug 2013

See all articles by Perry Dane

Perry Dane

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: July 21, 2013


This short essay is part of an exchange on religious liberty challenges to the so-called “contraception mandate,” which requires many employer-provided health insurance plans to cover contraception as part of preventative care.

The general idea of religion-based exemptions to general laws has been controversial for a long time. But rarely has a specific claim for exemption provoked as much vehemence as in the current fight over the contraception mandate. Doctrinally, the legal problem here is hard but conceptually straightforward, and comes down to whether the government has a compelling interest in applying the rule to employers with sincere religious objections. Both sides, though, see larger stakes at play. Opponents of the mandate describe it as an attack on bedrock principles of religious freedom. And some supporters want to avoid even reaching the compelling interest analysis and argue that the mandate often infringes no legitimate religious interests to begin with.

Both these extreme views are wrong. But they are also important. And they demand explanation. They suggest some imperfectly articulated undercurrents in the current American conversation about religion and the law. My goal here is therefore twofold – to analyze the legal problem, and to say something about the deep structure of the conflict, which goes beyond a simple legal dispute.

Keywords: contraception mandate, religious liberty, religion-based exemptions, Free Exercise Clause, Religious Freedom Restoration Act, church and state

Suggested Citation

Dane, Perry, Doctrine and Deep Structure in the Contraception Mandate Debate (July 21, 2013). Available at SSRN: or

Perry Dane (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

United States
856-225-6004 (Phone)
856-225-6004 (Fax)


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