No Compelling Interest: the "Birth Control" Mandate and Religious Freedom


Following the passage of the Affordable Care Act, the Department of Health and Human Services issued a regulation (the "Mandate") requiring employers of a certain size -- including religious institutions and businesses led by religious individuals --  to provide their employees health insurance covering birth control, sterilization, and emergency contraception, with no co-pay.  The rationale underlying the Mandate was contained in an Institute of Medicine report (the "Report") commissioned by the Department. The Report claimed that birth control and emergency contraception were "preventive medical care" for women and girls, claiming that they would lead to less unintended pregnancy and the associated health consequences thereof.  This article takes a very close look at the sources cited by the Report for its preventive health care claims. It concludes that the Report is poorly sourced, poorly reasoned, biased and incomplete.  The Report fails to show, inter alia: that more accessible contraception and emergency contraception have lowered rates of unintended pregnancy or abortion over time; and that "free" contraception and emergency contraception will provoke greater usage. It also fails to attend to the substantial risk of harming women's individual and social health, by further delinking sex and procreation.   Because the Mandate burdens the free exercise of religion, it must demonstrate a "compelling state interest" in order to survive a constitutional challenge.  Given the weakness of the factual case for the Mandate, it cannot meet the "compelling state interest" test.