This post was written by John D. Kraemer, Assistant Professor in the Department of Health Systems Administration at Georgetown University and O’Neill Institute Scholar. It was originally published in the Health Affairs Blog on March 20, 2014, and the summary is posted here with permission of the author. The views presented here are his own. Any questions or comments can be directed to firstname.lastname@example.org.
Next week, the Supreme Court will consider legal challenges to the Affordable Care Act’s requirement that most employers provide contraception coverage at no cost to employees. Whereas most analyses of these cases have focused on whether the Free Exercise Clause or Religious Freedom Restoration Act require religious exemptions from the contraception mandate, this post considers whether such exemptions would violate a different constitutional provision: the Establishment Clause. The Establishment Clause forbids religious accommodations if they would substantially burden third parties’ interests. In this instance, exempting for-profit, secular employers from the contraception mandate would impose significant limits on female employees’ health and autonomy and would be unconstitutional. Constitutional precedents protect religious freedom, but not always when in tension with important public health interests.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.