Last Friday, November 1, the Federal appeals court in Washington DC ruled 2-1 that the so-called contraceptive mandate, a regulation under Obama’s Affordable Care Act that requires employers over a certain size to provide insurance for free contraceptives, morning-after pills, and sterilization, most likely violates the Religious Freedom Restoration Act.

The DC Circuit, which is probably the second most influential in the US, after the Supreme Court itself, ruled that the mandate placed a substantial burden on the religious practice of the Gilardi brothers, who as conscientious Catholics are opposed to contraception and who co-own a grocery chain called Freshway Foods. The Court further held that the government had not demonstrated that there was a compelling government interest that was advanced for the regulation in the least religiously-restrictive way possible, as the law requires. The brothers were therefore entitled to a preliminary injunction against the mandate.

This is a matter that will ultimately be decided by the US Supreme Court in the coming year. There is now a “split in the Circuits,” a divergence in how the federal appeals courts have resolved this issue, which necessitates Supreme Court review to resolve the significant issue of federal law. The DC Circuit joins the Tenth Circuit’s Hobby Lobby case, in finding the contraceptive mandate to be a substantial burden on religious practice. (The Hobby Lobby case went further and held that for-profit corporations, and not just individuals and religious corporations, are persons with religious freedom rights under the law.)

The Third and Sixth Circuits, however, ruled that there was no substantial burden and that business corporations do not have religious freedom rights. The Supreme Court will almost certainly take up one of these cases to resolve these issues.

Of course, the Religious Freedom Restoration Act, which requires a compelling justification by the federal government for substantially burdening religious practice, as well as a regulation drawn in the least religiously-restrictive manner possible, is not the only law at issue here.

In the background is the American Constitution’s First Amendment free exercise clause, which requires that government not prohibit the free exercise of religion. But the Supreme Court has interpreted that to mean only that laws may not expressly target religious practice without compelling justification, but not that religiously-neutral laws of general applicability need any special justification.

The Religious Freedom Restoration Act goes beyond that, in holding all laws that (even incidentally) substantially burden religious exercise need such a compelling showing. Thus, the mandate is easier for plaintiffs to challenge under the federal law rather than the Constitution.

In any case, it is significant that the mandate is full of exceptions. This is highly relevant to whether this is a truly religiously-neutral rule of general applicability, and to whether there is indeed a compelling governmental interest behind it and whether the regulation is sufficiently narrowly tailored. Here, the Court held, “In this case, small businesses, businesses with grandfathered plans (albeit temporarily), and an array of other employers are exempt from the mandate itself or from the entire scheme of the Affordable Care Act. Therefore, the mandate is unquestionably under-inclusive.”

Of course, if a “free condoms for everyone” policy is so important, then the question is why doesn’t the government itself provide them, instead of forcing those who are conscientiously opposed for religious reasons to do so, while exempting countless others.

I am not an impartial commentator on the matter. In the interest of full disclosure, I filed an amicus brief on behalf of 28 Catholic theologians in support of the Gilardi brothers at the DC Circuit Court of Appeals. The brief was quoted and discussed in both the majority and dissenting opinions.

The brief argued that the mandate required Catholic employers to make substantial direct contributions to morally objectionable actions, and thus substantially burdened their religious practice. The majority accepted this, holding that “the burden on religious exercise does not occur at the point of contraceptive purchase.” That, of course, is a decision the individual employee makes. “Instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to chose between violating their religious beliefs in managing their selected plan or paying onerous penalties.”

The dissent by Judge Edwards notes that we argued the difference between the mandate and paying wages by saying that covering contraceptive products is akin to the difference between giving an underage person a “gift certificate” to buy beer, and giving money that he might spend on beer. Judge Edwards claims the analogy fails, because “[h]ealth coverage under the Mandate is not like giving a gift certificate to buy beer specifically, but more like a gift certificate to a supermarket where the recipient may purchase whatever is available, including beer.”

But health coverage under the Mandate is specifically and expressly extended to the morally objectionable services, which is precisely the point at issue, so Judge Edwards’ analogy is the one that fails.

And so the matter of the legality (and constitutionality) of the contraceptive mandate awaits US Supreme Court decision.

Dwight Duncan is professor of law at University of Massachusetts School of Law Dartmouth. 

Professor Dwight Duncan teaches courses in Constitutional Law, Legal Ethics, Religion and the Law, and Bioethics at University of Massachusetts School of Law Dartmouth. His interests include legal...