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The Contraception Mandate Part II

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5 Responses

  1. Joe says:

    On RFRA, the case U.S. v. Lee (Amish/tax policy) seems a compelling answer, since that involved a pre-Oregon v. Smith case & particularly since the PPACA was upheld on tax grounds, this rule in effect is a sort of tax on employers. The law there ALSO allowed certain exemptions. Finally, though I understand the legal logic involved, the argument seems ironic — oh? so you want it more strict? Fine.

    As to “surely we are past the point of debating whether promoting women’s liberty and equality and preventing sex discrimination are compelling state interests” … some seem not to think so, comparing this to toothpaste or implying those who use b/c are [see Ms. Fluke].

    As Lee noted:

    “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security [or this provision] taxes to an employer operates to impose the employer’s religious faith on the employees.”

    The ministerial case recently decided dealt with choice of ministers. This rule doesn’t address that but to the more “public” nature of things, which can be regulated by general applicable laws to advance compelling state interests. The particular law is also narrowly tailored.

  2. PrometheeFeu says:


    Couldn’t the abundance of exceptions go to the third prong of the test if the mandate is riddled with holes so as to render it ineffective?

  3. Joe says:

    Conceivably it can be so riddle w/holes, but doesn’t seem to be the case here. It might be useful to know how large the exceptions are, long term. What percentage?

  4. PrometheeFeu says:


    I would tend to agree.

  5. Chris says:

    The existence of exceptions can be relevant in one of two ways. The first, which Caroline focuses on here, is whether any of the interests touched by the law are in fact compelling ones. The existence of exceptions could show, for instance, that the interest at stake is not compelling.

    The second, which I don’t think Caroline’s post addresses, is whether a law is actually designed to advance the compelling interests it may further. The existence of exceptions might show, for instance, that a law which furthers a privacy interest does so only incidentally and was not designed for the purpose of furthering that interest, in which case the application of the law in particular instances would more readily give way to competing interests.

    This second way in which exceptions are relevant is what prevents the rule from collapsing in on itself. As I read Caroline’s post, its logic would require us to rewrite the third prong to say that exceptions are only relevant when we’re not *really* sure the interest at stake is a compelling one. I’m not aware of any cases that apply the test in that manner, though I stand ready to be corrected.

    In any event, the challengers to the contraception mandate seem to be making an argument based on the second way in which exceptions are relevant: The exceptions are evidence that the mandate incidentally, and not purposely, furthers gender equality, and therefore should give way to their genuine interests in religious liberty.

    But I haven’t read their briefs, so I may be putting words in their mouths.