Legislating Morality Progressively - The Contraceptive Coverage Mandate, Religious Freedom, and Public Health Policy and Ethics

This Article studies the contraceptive coverage mandate from three different perspectives. First, it provides a historical treatment of the regulatory rules adopted by agencies in the Obama Administration – specifically, the Departments of the Treasury, Labor, and Health and Human Services, which this Article collectively refers to as “the Administration” or “the Departments” – that imposed the mandate, focusing specifically on the rulemaking processes used to develop and promulgate the rules. In performing this historical study, the Article traces the development of the mandate from its root in the ACA to full implementation in legislative (substantive) rules finalized by the Administration in the summer of 2013. Second, this Article evaluates the mandate under the legal framework established by Congress in the Religious Freedom Restoration Act (RFRA), focusing especially on the Administration’s RFRA analysis in its rulemaking materials and the Supreme Court’s recent ruling regarding the mandate. Third, it analyzes the mandate under a moral and policy-based framework proposed by a team of leading bioethicists, public health policy analysts, and scholars. It applies the team’s proposed framework to determine whether the Departments that developed and adopted the mandate satisfied the various moral and policy considerations that these experts have highlighted