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114 Colum. L. Rev. Sidebar 1 (2014)

handle is hein.journals/sidbarc114 and id is 1 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 114 JANUARY 23, 2014 PAGES 1-25 THE CONTRACEPTION MANDATE DEBATE: ACHIEVING A SENSIBLE BALANCE Alan E. Garfield* A slew of secularforprofit businesses have sued seeking exemptions from the contraception mandate and many have succeeded in obtaining preliminary injunctions. This Essay explains why courts have found these claims credible under the Religious Freedom Restoration Act but contends that the Act's underlying purpose is best served by denying these entities an accommodation. INTRODUCTION One might have thought that the contraception mandate war would be settled by now.1 After all, the Obama Administration has already made important concessions to religious objectors. Early in the rulemaking * Distinguished Professor of Law, Widener University School of Law. I am grateful to Larry Hamermesh and Laura Ray for their valuable comments and to the members of the Church and State Policy Center of the Jewish Social Policy Action Network, whose robust debates about the contraception mandate were immensely helpful. 1. In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S.C.). The ACA requires non-exempt [employers] to provide coverage without cost- sharing for preventative care and screening for women in accordance with guidelines created by the Health Resources and Services Administration ('HRSA') . . . . Conestoga Wood Specialties Corp. v. Sec'y of the U.S. Dep't of Health & Human Servs., 724 F.3d 377, 381 (3d Cir. 2013), cert. granted, 82 U.S.L.W. 3328 (U.S. Nov. 26, 2013) (No. 13-356). The guidelines subsequently developed by the HRSA require employers to provide coverage for all FDA-approved contraceptive methods and sterilization procedures for women with reproductive capacity. Id. This requirement is typically referred to as the contraception mandate. Id. Non-exempt employers can choose to provide no health insurance for their employees, but this will subject them to a tax and could place them at a competitive disadvantage in recruiting and retaining employees. See, e.g., Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1140-41 (10th Cir. 2013) (en banc) (noting plaintiff employers could opt to provide no health insurance for their employees but this would subject them to annual tax of about $26 million and put them at competitive disadvantage), cert. granted, 82 U.S.L.W. 3328 (U.S. Nov. 26, 2013) (No. 13-354). 1