Epstein: Rethinking the Contraceptive Mandate

Legal scholar Richard Epstein thoughtfully presents the legal rationale for his assertion that the entire Obamacare contraceptive mandate "should be struck down root and branch," based not on religious liberty, but on classical "principles of freedom of association."

One depressing feature of the misguided constitutional debate over Obamacare was that it started from the common assumption that any general “freedom of contract” objection to the statute was dead-on-arrival. This dubious premise warps the entire constitutional discourse. A robust interpretation of freedom of association blocks the contraceptive mandate, not just for religious organizations, however defined, but for every group, regardless of its purposes or members. Any group that wants to supply contraceptive services is, of course, free to do so. But any group that opposes the mandate is free to go its separate way. Civil peace is preserved because no one faction or interest group can out-muscle any other. ...

Freedom of association ends wars; it does not start them. The correct baseline does not guarantee any package of healthcare benefits to any person, but leaves that topic to negotiation between parties. In a competitive world, firms can compete by offering or denying particular benefits, without the state having to second-guess its choices. ...

...once all individuals have equal rights of association across the entire range of human endeavors, the establishment issue disappears. It should be flatly unconstitutional for the state to force these mandates on any private organization period. If so, then there is no illicit preference for religious groups when they receive the same protection for their organizations that are given to other groups. But there is a manifest intrusion into ordinary religious liberties by forcing them to bear these costs.

The moral of the story should be clear. It is not possible to deviate in part from the classical liberal principles of freedom of association and hope that the resulting confusion will be ironed out down the road. The key defect in the central premise leads to indefensible distinctions and to second-best solutions, all of which should be rejected out of hand. In this context, religious liberty is lost by the imposition of an employer mandate. The entire mandate should be struck down root and branch.

Read his full argument.