Karen A. Jordan

Document Type



In the wake of the administrative rule requiring employee health benefit plans to cover contraceptive services, many employers are pursuing religious liberty claims against the federal government. In claims under the Religious Freedom Res- toration Act, a prima facie showing by a plaintiff that a federal law substantially burdens the exercise of religion shifts the burden to the government to justify the burden by showing that the law is the least restrictive means of advancing a compel- ling governmental interest. This article focuses on the compelling interest prong of the government's burden. The text of RFRA and judicial gloss make clear that the government's burden of proof is not insubstantial: the government must demon- strate, with probative and persuasive evidence, that applying the law to the person challenging it in fact furthers a compelling governmental interest. In the lawsuits, courts and litigants have tended to focus on the exemptions built into the coverage mandate, but the more significant weakness in the government's case relates to the limited value of the evidence supposedly showing that the contraceptive mandate fur- thers the relevant compelling interest. The article demonstrates that the relevant com- pelling interest is narrower than the interests pointed to by the government in the litigation, and that evidence relied on by the government to show that the mandate furthers the compelling interest lacks probative and persuasive value. More specifically, the compelling interest is the interest in providing coverage for preventive services needed to protect women's health, and the evidence relied on by the government in the litigation and in the rulemaking process that purportedly shows that contraceptive services promote women's health suffers from a variety of shortcomings. Congress envisioned that reliance on expert advisors who conducted rigorous risk/benefit assessments would ensure that services would be included in the mandate only if they genuinely promote women's health and are not merely pop- ular services. The agency confirmed the importance of a risk/benefit assessment as part of the rulemaking process, and delegated the task to the Institute of Medicine (IOM). The government points to the resulting 2011 IOM recommendation as evi- dence justifying the mandate's burden on the challengers' exercise of religion. How- ever, scrutiny of the methodology used by IOM in the recommendation process and its application to contraceptive services, and scrutiny of sources relied on by IOM in producing its recommendation, reveals obvious gaps, omissions, and logical short- comings that seriously undermine the recommendation's evidentiary value. Family planning is important for women's health, but the evidence does not support the proposition that contraceptives are necessary for safe and effective family planning, and thus does not support the proposition that contraceptives are necessary for women's health. Scrutiny of the 2011 IOM recommendation and the sources relied on by IMO show that ideology was the driving force behind the contraceptive man- date and, under RFRA, promotion of ideology will not satisfy the government's bur- den.

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