PEACEFUL COEXISTENCE

76 Peaceful Coexistence Report
access to all FDA-approved contraceptives without cost-sharing.” 156 The Court simply assumed
that the government’s interest was compelling. 157
With the government’s interest recast as “increasing women’s access to free contraception,” can
it qualify as a compelling interest? There is still litigation swirling around various provisions of
the HHS mandate, so it is worth examining this issue in detail. I do not credit the government’s
far-fetched argument that the provision of free contraceptives to employed women is as vital to
the republic as the financial health of the Social Security system. 158 The Constitution does not
mandate the free provision of any consumer good. Why should anyone have a right to a
consumer good funded by their fellow citizens? Women’s equality does not depend upon having
free (to them) contraceptives; 159 it is guaranteed by the Fourteenth and Nineteenth Amendments.
Except in cases where contraceptives are prescribed to address non-pregnancy related medical
conditions contraceptives are not, strictly speaking, medically necessary. They may be necessary
for women (and by extension men) to live as they wish, but they are not medically necessary.
The women affected by the mandate are by definition employed so if they value contraception
they can purchase it. 160 And truly low-income women already have access to free or very
inexpensive contraceptives through the government. 161
156
Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2779 (2014).
157
Id. at 2780.
158
Korte, 735 F.3d at 686.
159
Griffin Statement, infra at 220 (“the federal contraceptive mandate has unfolded as a war between religious
freedom on one side and women’s equality on the other”).
160
Richard A. Epstein, Hobby Lobby vs. the Contraception Mandate, DEFINING IDEAS, July 7, 2014, available at
http://www.hoover.org/research/hobby-lobby-vs-contraceptive-mandate.
Rational basis has no place under the RFRA, which requires the state to show that the supposed compelling interest in
women’s healthcare justifies a statutory mandate that disrupts all preexisting practices whereby firms did not supply
the mandated contraception services. But women’s healthcare is no more a compelling interest than men’s healthcare.
The elaborate ACA legislative findings that uninsured women need healthcare fail miserably to explain the
employer’s duty to subsidize anyone’s healthcare. Neither the ACA’s legislative history nor the [sic] Justice
Ginsburg’s dissent identifies any systematic market disruption remotely comparable to natural disasters, domestic
uprisings, and foreign invasions. The orderly private market for contraceptive services negates any government
necessity to make employers pay for them. Nothing in the RFRA, of course, prevents the state from providing those
benefits out of general revenues.
161
Helen Alvaré, No Compelling Interest: The “Birth Control” Mandate and Religious Freedom, 58 VILLANOVA L.
REV. 379, 424-25 (2013).