The First Amendment

Another Victory for Challengers of HHS Mandate

The HHS contraceptive mandate suffered another loss last Friday—its third loss in the four decisions that have addressed the merits of the claim that the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA). In a thorough opinion in Tyndale House Publishers v. Sebelius, Judge Reggie B. Walton of the federal district court for the District of Columbia granted a preliminary injunction that bars the federal government from penalizing a publishing house for its religiously based refusal to provide insurance coverage for contraceptives that also operate as abortifacients.

I’ll highlight two aspects of Judge Walton’s impressive ruling:
First, Walton (a Bush 43 appointee) soundly disagrees with the one poorly reasoned ruling (O’Brien) that rejected the RFRA challenge on the ground that the HHS mandate did not substantially burden plaintiffs’ exercise of religion:

Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden. [p. 25]

Second, in ruling that the government had failed to demonstrate that it had a compelling governmental interest that justified the HHS mandate, Walton relies heavily on the fact that the government has already exempted lots of other employers—including those operating so-called “grandfathered” plans and those with fewer than 50 employees—from the HHS mandate. (Pp. 32-35.) As he correctly observes, “The existence of these exemptions significantly undermines the [government’s] interest in applying the contraceptive coverage mandate to the plaintiffs” (p. 35). (See Part IV of my law-review essay for more on this point.)
A couple of additional observations:
1. All three of the victories against the HHS mandate (and all four of the preliminary-injunction rulings) have come in cases involving for-profit businesses. (That’s because the Obama administration, through its non-enforcement “safe harbor” and its (phony) promised accommodation of religious employers, has succeeded in deferring merits rulings in cases brought by religious nonprofits.) In the view of many observers, these for-profit businesses would have a difficult time vindicating their religious-liberty interests. Their success so far speaks powerfully to how blatantly the HHS mandate violates RFRA.
2. In a couple of respects, the Tyndale case might seem narrower than some of the other challenges brought by for-profit businesses: Rather than running a purely secular line of business, Tyndale is a publisher of religious books; and, rather than challenging the HHS mandate in toto, Tyndale challenges it only insofar as it requires coverage of abortifacients. But on my reading of Walton’s opinion, it seems doubtful that the illegality of the HHS mandate turns on these distinctions. To be sure, Walton, properly focusing on Tyndale’s “specific characteristics” (p. 29), presents these particulars, and the abortifacient-only challenge is central to the first part of his compelling interest analysis (pp. 29-32), but I see no reason to believe that his bottom line would be different for the owners of a secular business who had religious objections to providing coverage of contraceptives generally. (Walton didn’t even need to reach the least restrictive means element of RFRA—an element that the HHS mandate clearly flunks (as I discuss in Part III here).
Congratulations to the Alliance Defending Freedom for its victory.