Causation and Complicity: The HHS Contraceptive Mandate and Asymmetrical Burdens on Free Exercise
78 Pages Posted: 23 May 2014
Date Written: September 30, 2013
In 2010 Congress enacted comprehensive health insurance reform through passage of the Patient Protection and Affordable Care Act (ACA). One of the most controversial provisions of the ACA requires that all non-grandfathered or non-exempt employers provide employees with coverage for women’s “preventive care.” While the ACA itself did not specify the content of this “preventive care” coverage, however, subsequent regulation issued by the Department of Health and Human Services (HHS) directed that it must include, “[a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” (the HHS mandate or mandate), unless an employer is willing to suffer severe economic penalties. The HHS mandate generated immediate opposition from many employers, both non-profit and for-profit, who claimed that compliance with it would inevitably involve them in immoral conduct impinging upon their right to free exercise of religion under the Religious Freedom Restoration Act (RFRA). In response to such challenges, the government argued, and a number of courts have agreed that compliance with this mandate does not impose a substantial burden on free-exercise rights. More specifically, courts denying for-profit employers injunctive relief from the mandate have found that the burden imposed in requiring employers to pay for contraceptive coverage “is too attenuated to be considered substantial.” This Article proposes two general arguments against this conclusion. The first proposes that the finding of no substantial burden on free exercise based on an attenuated-cause argument, fails when the factual connections between employers’ and employees’ conduct are considered in light of more appropriate accounts of causal connection and responsibility offered in other legal and religious or ethical contexts, including consideration of legal doctrines of proximate and intervening causation as well as Catholic religious or ethical distinctions made between formal and material cooperation in wrongdoing. By means of these considerations, to support a finding of a substantial burden on free exercise it is argued that by paying for contraceptive coverage under the HHS mandate, a for-profit employer would, in a non-trivial sense, bear sufficient responsibility for facilitating an employee’s use of that coverage. In short, by failing to appreciate the proper nature of causal analysis, these courts have drawn erroneous conclusions with respect to the substantial burden issue.
Keywords: Contraception, Free Exercise of Religion, RFRA, Proximate Cause, Formal and Material Cooperation in Wrongdoing
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