Law professors John Eastman of Chapman University and Martin Lederman of Georgetown debated the religious implications of ObamaCare’s contraception mandate during a panel discussion at a recent Federalist Society conference.
With the passage of the Religious Freedom Restoration Act (or RFRA), Congress was “trying to restore a 200-year-old understanding of what the free exercise clause did” for religious conscience. He said, “The First Amendment was not there to protect religions that could only get their accommodations through the majoritarian process.”
With religion, “You can challenge the sincerity of religious beliefs but cannot challenge the merits of it” and people “have to respect that.” Eastman said, “[It’s] amazing that a large number of the people who are arguing that a corporation cannot exercise a religious conscience are the same people that routinely insist that corporations should exercise a social conscience.”
“You can’t have it both ways. There’s not a subset, religious conscience is a part of overall conscience that we expect corporations to exercise at all times” and by doing so, they are “clear RFRA violations.”
Somewhat discordantly, instead of forcing companies like Hobby Lobby to pay for contraceptive care as a part of ObamaCare’s employer mandate, Eastman suggested the government come up with a general fund via an “alternative” or “general” tax.
Lederman argued, “There is no contraception mandate” because “it doesn’t force them [owners]” to pay for the coverage. “This turns out the law isn’t that…there is no legal mandate to do so.” He went on and said that employers can choose “not to provide health insurance” to their employees and thereby avoid the non-existent mandate. Lederman admitted that this is “a really hard and intricate question, and very case-specific” regarding ObamaCare and pressuring businesses to provide or drop coverage.
He cited a study which said, “They expect that 90% … [of employers] will in fact stop providing health insurance…this will not only be economically feasible or rational” for the companies, but a new reality of health insurance coverage.