Compelling Interests and Contraception

15 Pages Posted: 3 Feb 2015 Last revised: 1 Jun 2015

See all articles by Neil Siegel

Neil Siegel

Duke University School of Law

Reva Siegel

Yale University - Law School

Date Written: February 9, 2015

Abstract

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas of race and sex equality.

The government’s compelling interests, we argue, are best understood from within two horizons: they encompass not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace, but also crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement — interests that sound in bodily integrity, personal autonomy, and equal citizenship. Further, as we show, a full accounting of the government’s compelling interests attends both to their material and expressive dimensions. This more comprehensive account of the government’s compelling interests in providing employees access to contraception matters both in political debate and in RFRA litigation as courts determine whether the government has pursued its interests by the least restrictive means. The more comprehensive account offered here is less susceptible to compromise and tradeoffs than is an account focused only on material interests in public health and contraceptive cost.

Suggested Citation

Siegel, Neil and Siegel, Reva B., Compelling Interests and Contraception (February 9, 2015). Connecticut Law Review, Vol. 47, May 2015, Forthcoming, Duke Law School Public Law & Legal Theory Series No. 2015-10, Yale Law School, Public Law Research Paper No. 541, Available at SSRN: https://ssrn.com/abstract=2559184

Neil Siegel (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States

Reva B. Siegel

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

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