Thanks to some comments on an earlier post, I have learned that as many as  twenty-eight states require insurance providers to include contraceptive coverage in the packages they offer. Twenty states offer some form of conscientious exemption from the requirement; eight—including (much to my dismay) my home state—do not. According to the pro-abortion Guttmacher Institute, Arizona’s recently-passed law , which exempts religious organizations, but not religiously motivated employers, is an example of an “expansive” exemption. Massachusetts offers an exemption limited to churches or “qualified church-controlled” organizations.  California has a much narrower exemption , resembling the Obama Administration’s initial proposal (e.g., limiting exemptions to institutions whose purpose is to inculcate religious values and that primarily serve co-religionists).

This patchwork of state insurance regulations will likely continue to pose a problem, even if the lawsuits against the Obama Administration’s contraceptive mandate succeed. Consider the following possibility: Hobby Lobby wins its case against the HHS mandate, but the court grounds its judgment on the Religious Freedom Restoration Act , and not on the Free Exercise Clause. In that case, the federal government would be enjoined from requiring Hobby Lobby to provide contraceptive coverage, but none of the state laws requiring coverage would be affected.

It wouldn’t at all surprise me if RFRA were the basis of an eventual Supreme Court decision overturning the HHS mandate; it requires that laws restricting religious freedom to fulfill a “compelling state interest” and be the least restrictive means of achieving that interest. By contrast, current Supreme Court free exercise doctrine treats generally applicable laws much more permissively, looking askance largely at laws that seem explicitly aimed at restricting religious practices. From our point of view, the problem is that the Court has rejected the application of RFRA to state laws, enforcing it only against federal actions. Hence the Hobby Lobby possibility I mentioned above, with mandates affecting a variety of different kinds of faith-based organizations, depending upon the particular state laws. If I’m not mistaken, Colorado Christian University could, for example, win its case against HHS and still be required by state law to provide contraceptive coverage to its employees. And even if they were freed from the Obamacare mandate, a wide range of faith-based employers in California would remain subject to a state law that basically exempts only churches.

You get the picture.

There is likely still work to be done on the state level if religious organizations and religiously-motivated employers are to be able to enjoy the fruits of any judicial victory against the HHS mandate. I can imagine a number of different possibilities, ranging from a repeal of state laws at odds with newly religion-friendly federal insurance regulations to more generous exemptions, where they can be won. Of course, since we don’t know what the outcome of the current round of litigation will be, it is probably safest to operate as if everything depended upon the state legislature. Since we have had so much talk about the way in which the HHS mandate trenches upon religious freedom, it may well be a propitious time for the friends of faith-based organizations to ask their state legislatures to consider how their own state laws violate the consciences of employers.

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