March 25, 2014
Compelling State Interest
Posted by Brett Scharffs

In a previous post, I speculated that the reason the government insists that Hobby Lobby has no conscientious interests and that the Greens’ free exercise interests are not burdened by the contraception mandate may be because the arguments regarding compelling state interest and least restrictive means are so weak.

If Hobby Lobby (or the Greens) have suffered a substantial burden on their Free Exercise rights, this triggers balancing under the compelling state interest test. The government can justify the burden by showing that it is necessitated by a weighty interest, and there is no less restrictive means of achieving that interest.

This post will focus just on the question of compelling state interest.

The contraception mandate is a new subsidy that did not exist prior to the enactment of Obamacare, so it is difficult to see the state’s interest as suddenly becoming compelling. Some employer plans are exempted by a grandfather clause. More significantly, by its terms, the mandate (indeed the entire Affordable Care Act) does not apply to employers with fifty or fewer employees, which means it does not apply to approximately 90% of all private employers in the United States, and does not apply to about 50% of all employees. Furthermore, in February 2014, President Obama announced that he was delaying the implementation of ObamaCare for employers with between 50 and 100 employees for another year, until 2016. Unilateral executive postponement of the ACA would be extremely problematic if it were a violation of compelling state interests. Finally, under settled doctrine, the state must establish not just a general interest in providing contraceptives to some women, it must establish a compelling interest to impose this mandate on this employer.

The contraception mandate seems primarily to be a cost shifting mechanism, moving the expense of providing contraceptives from individuals and the government to private businesses. It is odd to claim that there is a state interest so strong that we must force Hobby Lobby to offer these services in violation of sincerely and strongly held religious beliefs, when there is not enough of a compelling state interest to apply this law to 90% of all employers, especially when the President can unilaterally postpone the implementation of the statute for another large group of midsized employers.

In my next post I’ll explain why the claim that the contraception mandate is the least restrictive means for accomplishing the government’s interest in providing contraceptive coverage is, if anything, even weaker.

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