Terri Day & Leticia M. Diaz (Barry U. Dwayne O. Andreas School of Law) have posted The Affordable Care Act and Religious Freedom: The Next Battleground. The abstract follows.
This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the Supreme Court will apply strict scrutiny review as required by the Religious Freedom Reformation Act, the authors conclude that the HHS Mandate will not likely pass constitutional muster.