Changes announced today by the Department of Health and Human Services (HHS) to its contraceptive mandate are likely to focus attention even more on for-profit companies that object to the mandate on religious grounds.
While several churches and religious nonprofits are likely to continue their protests against the mandate, today's announcement says they don't have to directly provide full contraception coverage to their employees. But for-profit companies have no exemptions, even if they're religious.
The battle over the mandate—and the emergency contraception it requires—has long been over personhood. Is a fertilized egg a person? Do the emergency contraceptives stop eggs from uterine implantation, ending a person's life?
But now the legal battles against the HHS employer contraceptive mandate are shifting to very different questions of personhood: Are for-profit corporations "persons" in such a legal sense that they have religious rights? And do their religious liberties allow them to avoid the mandate?
Several for-profit corporations have brought their cases against HHS on the basis of the First Amendment and the Religious Freedom Restoration Act (RFRA). The 1993 federal statute states, "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" without compelling government interest.
Until now, HHS cases have largely fought over the term "substantial burden"—essentially debating the political version of the youth-group perennial, "How far is too far?" But now that appeals courts are weighing in, the conversation may shift to another of the RFRA's ...