Free contraception for everyone at whose expense?

November has brought us two federal appeals court rulings that the contraceptive mandate, a regulation under Obama's Affordable Care Act requiring employers over a certain size to provide insurance for free contraceptives, morning-after pills, and sterilization, most likely violates religious freedom as codified in the Religious Freedom Restoration Act. The D.C. Circuit ruled on Nov. 1 that the mandate placed a substantial burden on the religious practice of the Girardi brothers, who as conscientious Catholics are opposed to contraception and who co-own a grocery chain called Freshway Foods. The Court held that the government had not demonstrated that there was a compelling government interest that was advanced for the regulation in the least religiously-restrictive way possible, as the law requires. The brothers were therefore entitled to a preliminary injunction against the mandate.

One week later, the United States Court of Appeals for the Seventh Circuit out of Chicago ruled likewise, and further ruled that even for-profit business corporations could assert religious freedom in their own right, since corporations are considered legal persons at common law and under the Constitution, as well as under the federal Dictionary Act. While this may seem counter-intuitive, we should not forget that the first corporation in our western legal tradition was and is the Catholic Church, the Body or Corpus of Christ, head and members. Surely, religious corporations have religious freedom to organize and govern themselves. Adding a profit motive does not change a corporation's ability to seek religious goals, any more than it takes away their free speech rights. Corporations, after all, are people working together for common purposes over time.

These are matters that will ultimately be decided by the United States Supreme Court in the coming year. There is now a "split in the Circuits," a divergence in how the federal appeals courts have resolved this issue, which necessitates Supreme Court review to resolve the significant issue of federal law. The Seventh and D.C. Circuits join the Tenth Circuit's Hobby Lobby case, in finding the contraceptive mandate to be a substantial burden on religious practice. The Third and Sixth Circuits, however, ruled that there was no substantial burden and that business corporations do not have religious freedom rights. The Supreme Court will almost certainly take up one of these cases to resolve these issues.

In any case, it is significant that the contraceptive mandate of the Obama administration is full of exceptions, which is highly relevant to whether there is indeed a compelling governmental interest behind it and whether the regulation is sufficiently narrowly tailored. Here, the D.C. Circuit held, "In this case, small businesses, businesses with grandfathered plans (albeit temporarily), and an array of other employers are exempt from the mandate itself or from the entire scheme of the Affordable Care Act. Therefore, the mandate is unquestionably underinclusive."

Of course, if a "free contraception for everyone" policy is so important, then the question is why doesn't the government itself provide it, instead of forcing those who are conscientiously opposed for religious reasons to do so, while exempting countless others.

I am not an impartial commentator on the matter. I filed an amicus brief on behalf of 28 Catholic Theologians in support of the Gilardi brothers at the D.C. Circuit Court of Appeals. The brief was quoted and discussed in both the majority and dissenting opinions. The brief argued that the mandate required Catholic employers to make substantial direct contributions to morally objectionable actions, and thus substantially burdened their religious practice. The majority accepted this, holding that "the burden on religious exercise does not occur at the point of contraceptive purchase." That, of course, is a decision the individual employee makes. "Instead, it occurs when a company's owners fill the basket of goods and services that constitute a healthcare plan. In other words, the Gilardis are burdened when they are pressured to chose between violating their religious beliefs in managing their selected plan or paying onerous penalties."

The bishops of the United States have just reaffirmed their decided opposition to the contraceptive mandate, with all its works and pomps. In a statement issued Nov. 13, they stated: "Beginning in March 2012, ... we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all." Let's see if the U.S. Supreme Court comes to the rescue!

Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.