Obama's Birth-Control Mandate Unlikely to Win Court Challenges, Legal Scholar Says

The Obama administration's requirement that employers provide health insurance coverage for contraception, sterilization and abortion-inducing drugs is facing legal challenges. A legal scholar told The Christian Post that the courts are unlikely to decide in the Obama administration's favor.

"This is seriously problematic under the Religious Freedom Restoration Act," John Witte, Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Professor, and director of the Center for the Study of Law and Religion Center at Emory University, Atlanta, Ga., told The Christian Post.

Some states and religious groups that are not covered under the religious exemption are suing on the grounds that it violates their freedom of conscience and the Religious Freedom Restoration Act.

RFRA was passed by Congress in 1993 in response to a Supreme Court decision, Employment Division v. Smith (1990). RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest, Witte explained.

"Those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim."

Freedom of conscience was intended to be an important part of what the authors of the First Amendment meant for the Free Exercise clause to embody, according to Witte, who authored Religion and the American Constitutional Experiment (2011), which describes the formation and development of the religious freedom clauses of the First Amendment.

The Founding Fathers "started with the notion that a person has freedom of conscience to decide on matters of faith themselves," Witte said, "to choose and change their convictions, to assess the evidence of God's providence and how they should respond to it, to determine the duties they should discharge as a matter of faith, and to be given the freedom to do that without inducement, coercion or direction by the state.

"Once they have made their choices of faith, then parties are free to exercise them, to put them into action through words that they express ..., associations with others that they can form in a religious community, [or] actions that they can take on the strength of their convictions or with their community, ... [such as,] educating their children, engaging in certain forms of charity, [or] participating in their community with their own religious convictions."

Ironically, Witte noted, the courts have "deprived the Free Exercise Clause of a lot of the protections for conscience that was envisioned by the Framers themselves," but, freedom of conscience has nonetheless been protected by Congress and state legislatures, with RFRA being just one of "dozens, if not hundreds" of examples.

Witte's preference, though, would be for the courts to recognize that freedom of conscience is protected under the First Amendment. Witte worries that if those protections are only provided legislatively, then minority religions, whose followers do not have the means to influence legislative bodies, would not be protected.

"Those that are worried about activist courts find this solution a welcome one. Those that are worried about tyranny of the majority find this solution a troubling one, because, the whole point of having a free exercise clause that gives a party an opportunity to seek exemption from a general law will provide minorities with an oasis of nonconformity – the ability to escape what might be a general rule that satisfies a majority, but runs contrary to their own [religious faith]."

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