Last Friday, the White House announced that it would revise the controversial ObamaCare birth-control mandate to address religious-liberty concerns. Its proposed modifications are a farce.
The Department of Health and Human Services would still require employers with religious objections to select an insurance company to provide contraceptives and drugs that induce abortions to its employees. The employers would pay for the drugs through higher premiums. For those employers that self-insure, like the Archdiocese of Washington, the farce is even more blatant.
The birth-control coverage mandate violates the First Amendment's bar against the "free exercise" of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.
That case limited the protections available under the First Amendment's guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.
The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may "substantially burden" a person's "exercise of religion" only if it demonstrates that application of the burden to the person "is in furtherance of a compelling governmental interest" and "is the least restrictive means of furthering" that interest.
The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.