Several Roman Catholic organizations have challenged Obama administration rules requiring religious colleges and hospitals (but not churches themselves) to offer preventive healthcare, including contraceptive coverage, with no deductibles or co-pays. Even though the Supreme Court has upheld the constitutionality of most of the Affordable Care Act (“Obamacare”), the courts still have to decide whether those institutions are exempt from the contraception requirement under a federal law called the Religious Freedom Restoration Act.
Our view is that church-affiliated charitable and educational institutions should offer such coverage, even if they are self-insured. Not all of their employees are Catholic, and even many Catholics make a personal choice to use contraceptives. The Obama administration’s decision to provide only a narrow religious exemption is the right one.
That said, religious colleges and hospitals are at least part of a church’s religious mission, so the discussion makes sense. The same cannot be said for a company that sells heating, ventilation and air conditioning services. Yet a federal judge in Colorado is taking seriously a complaint by Hercules Industries, an HVAC company owned by a Catholic family, that the contraceptive mandate violates its rights under the Religious Freedom Restoration Act. Senior U.S. District Judge John L. Kane issued a preliminary injunction blocking enforcement of the contraceptive mandate against Hercules.
Enacted in 1993 with bipartisan support, the Religious Freedom Restoration Act allows believers to opt out of generally applicable laws that “substantially burden” their free exercise of religion — unless the law in question serves a compelling governmental interest and is the least restrictive means of furthering that interest.
Kane suggested that the Obama regulations weren’t the least restrictive means to achieve contraceptive coverage. For example, he said, the government could instead create a contraception insurance plan with free enrollment or establish a tax credit or deduction for contraceptive purchases. (Good luck trying to get Congress to approve one of those alternatives.)
It’s troubling that Kane sees a for-profit secular company as in any way analogous to a parochial school or Catholic hospital. It’s not a new idea: Earlier this year Senate Republicans unsuccessfully proposed a bill to let any employer drop health coverage that didn’t comport with his religious or moral beliefs. But it is a bad idea. Reasonably interpreted, neither the Religious Freedom Restoration Act nor the 1st Amendment provides an escape hatch for profit-making businesses from the ACA, any more than it exempts them from civil rights laws.