114 Colum. L. Rev. Sidebar 1 (2014)

handle is hein.journals/sidbarc114 and id is 1 raw text is: 









   COLUMBIA LAW REVIEW


                           SIDEBAR

VOL. 114                    JANUARY 23, 2014                   PAGES 1-25







          THE CONTRACEPTION MANDATE DEBATE:
               ACHIEVING A SENSIBLE BALANCE


                             Alan E. Garfield*


         A slew of secularforprofit businesses have sued seeking exemptions
    from the contraception mandate and many have succeeded in obtaining
    preliminary injunctions. This Essay explains why courts have found
    these claims credible under the Religious Freedom Restoration Act but
    contends that the Act's underlying purpose is best served by denying these
    entities an accommodation.

                              INTRODUCTION

     One might have thought that the contraception mandate war would
be settled by now.1 After all, the Obama Administration has already made
important concessions to religious objectors. Early in the rulemaking



    * Distinguished Professor of Law, Widener University School of Law. I am grateful to
Larry Hamermesh and Laura Ray for their valuable comments and to the members of the
Church and State Policy Center of the Jewish Social Policy Action Network, whose robust
debates about the contraception mandate were immensely helpful.
    1. In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA),
Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the
U.S.C.). The ACA requires non-exempt [employers] to provide coverage without cost-
sharing for preventative care and screening for women in accordance with guidelines
created by the Health Resources and Services Administration ('HRSA') . . . . Conestoga
Wood Specialties Corp. v. Sec'y of the U.S. Dep't of Health & Human Servs., 724 F.3d 377,
381 (3d Cir. 2013), cert. granted, 82 U.S.L.W. 3328 (U.S. Nov. 26, 2013) (No. 13-356). The
guidelines subsequently developed by the HRSA require employers to provide coverage
for all FDA-approved contraceptive methods and sterilization procedures for women with
reproductive capacity. Id. This requirement is typically referred to as the contraception
mandate. Id. Non-exempt employers can choose to provide no health insurance for their
employees, but this will subject them to a tax and could place them at a competitive
disadvantage in recruiting and retaining employees. See, e.g., Hobby Lobby Stores, Inc. v.
Sebelius, 723 F.3d 1114, 1140-41 (10th Cir. 2013) (en banc) (noting plaintiff employers
could opt to provide no health insurance for their employees but this would subject them
to annual tax of about $26 million and put them at competitive disadvantage), cert.
granted, 82 U.S.L.W. 3328 (U.S. Nov. 26, 2013) (No. 13-354).


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