The Protection of Conscience: On ACA, RFRA and Free Exercise Guarantees

by Mark Strasser

Several businesses have recently challenged the constitutionality of the Affordable Care Act (“ACA”) on free exercise grounds, arguing that they are being forced to violate their sincerely held religious convictions when required to provide insurance coverage for contraception. The federal courts issuing opinions in these cases have varied widely, both in result and in their analyses of the relevant constitutional and statutory issues.

Some courts suggest that for-profit corporations are protected by free exercise guarantees as embodied in the Religious Freedom Restoration Act (“RFRA”) as long as these corporations are rightly analogized to individuals. While these courts are correct to examine the soundness of that analogy, they should not assume that free exercise guarantees are particularly robust for individuals. On the contrary, those guarantees have traditionally been relatively weak for those who act contrary to law for religious reasons.

Part II of this article discusses the degree to which free exercise guarantees have protected individuals or businesses. Part III discusses RFRA and differing circuit analyses with respect to whether RFRA requires that for-profit corporations with religious objections to fulfilling certain ACA requirements be afforded an exemption with respect to those obligations. The article concludes that because free exercise guarantees as traditionally understood do not afford protection to these corporations and because RFRA is not plausibly interpreted to do so either, the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Incorporated is likely to result in a flood of litigation to determine the new parameters of RFRA.

 

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