5B. RFRA Strict Scrutiny: The Interest in Sex Equality

(For an introduction to this series of posts, see here.)

Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on the interest in sex equality. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting sex equality, since it would provide women employees with the same benefits as they would get under the unmodified employer mandate.)

1. One version of this interest is in preventing intentional sex discrimination. When an employer refuses to cover contraceptives that can only be used by women, the argument would go, it is engaged in sex discrimination, just as if it paid women less — even only a bit less — than men. The Court would likely find the interest in preventing such sex discrimination in employment to be compelling. See Bob Jones Univ. v. United States (1983); Roberts v. U.S. Jaycees (1983).

The problem with this argument is that the Court has never treated regulations of abortion as tantamount to sex discrimination, even though only women can get abortions. (I don’t want to focus here on whether that’s right or wrong; I’m just speaking of what the majority view on the Court has been, and is likely to be.) Indeed, the Court rejected such an argument in Bray v. Alexandria Women’s Health Center (1993). It rejected an Equal Protection Clause challenge to the exclusion of abortion from federal funding in Maher v. Roe (1977) and Harris v. McRae (1980), after the Court had already concluded that sex discrimination (including in funding) generally violates the Equal Protection Clause. And it has analyzed abortion restrictions that don’t impose an “undue burden” on abortion under the rational basis test, see Planned Parenthood v. Casey (1992), not the quite demanding intermediate scrutiny called for in sex classification cases.

Indeed, even distinctions based on pregnancy aren’t treated as tantamount to sex discrimination under the Equal Protection Clause, Geduldig v. Aiello (1974), reaffirmed by Bray, though Congress has statutorily treated pregnancy discrimination as covered by the Title VII sex discrimination ban. This is one reason why special benefits that favor pregnant women don’t pose constitutional problems, even though discrimination against men is generally as constitutionally suspect as discrimination against women.

Of course, federal law generally doesn’t treat potentially implantation-preventing contraceptives the same as abortions. For instance, federal law generally bans federal funding of abortions, but this ban doesn’t apply to such contraceptives. Moreover, the substantive legal rules governing the Equal Protection Clause and sex discrimination by the government need not be the same as the legal rules governing private sex discrimination under RFRA.

But the questions whether (a) exclusion of abortion in government funding is intentional sex discrimination and whether (b) exclusion of potentially implantation-preventing contraceptives in private employer funding is intentional sex discrimination are essentially the same. In Bray, the Court rejected the argument that, “since voluntary abortion is an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class.” This rejection would likely apply equally to employer actions that disfavor the use of implantation-preventing contraceptives.

2. Of course, this leaves the interest in preventing what the law sometimes calls “disparate impact” on women. Even if exclusion of these contraceptives isn’t intentional discrimination based on sex (but is instead discrimination based on the potential to cause what the employer views as tantamount to abortion), the argument would go, the exclusion has a greater effect on women than on men, and the government has a compelling interest in preventing such disparate impact.

The complicating factor here is that the Affordable Care Act already appears to create a disparate impact in favor of women. According to Judge Rovner’s dissent in Korte v. Sebelius (7th Cir. 2013) (paragraph breaks added) — a dissent that was generally hostile to the religious exemption claim, and that stressed the sex equality rationale –

The Women’s Health Amendment to the ACA, spearheaded by U.S. Senator Barbara Mikulski, expanded the range of requisite preventive care to include a separate set of preventive services for women. In proposing the amendment, Senator Mikulski noted that many women forego preventive screenings for the conditions that statistically are most likely to result in their death — breast, cervical, colorectal, ovarian and lung cancer, and heart and vascular disease — either because they lack insurance, the services are not covered by their insurance plans, or because the large copayments required by their insurance companies for these screenings are beyond their financial means.

“Women of childbearing age incur 68 percent more out of pocket health care costs than men,” she pointed out. “My amendment guarantees access to critical preventive screening and care for women to combat their number one killers and provides it at no cost. This amendment eliminates a big barrier of high copayments.” Press release: Mikulski Puts Women First in Health Care Debate (November 30, 2009), available at http://www.mikulski.senate.gov/media/pressrelease/11-30-2009-2.cfm (last visited Nov. 7, 2013); see also Jessica Arons & Lindsay Rosenthal, Center for American Progress, Facts About the Health Insurance Compensation Gap (June 2012) (“Even with employer-based coverage, women have higher out-of-pocket medical costs than men. Overall, women of reproductive age spend 68 percent more out of pocket than men on health care, in part because their reproductive health care needs require more frequent health care visits and are not always adequately covered by their insurance. Among women insured by employer-based plans, oral contraceptives alone account for one-third of their total out-of-pocket health care spending.”), available at http://www.american progress.org/issues/healthcare/news/2012/06/01/11666/facts-about-the-health-insurance-compensation-gap/ (last visited Nov.7, 2013).

If this is right, then under the ACA, women would get considerably more benefits than men (because their expenses are greater). I take it that this would be true even with Hobby Lobby’s proposed exemption, given that Hobby Lobby wants to avoid funding only a small fraction of all available preventing services. So even Hobby Lobby’s proposal would still leave the law with a disparate impact in favor of women.

3. The strongest argument for the Women’s Health Amendment, I think, then isn’t so much that employers who don’t fund certain services are creating a disparate impact against women. Rather, it’s that life creates greater medical burdens on women of childbearing age than on men. “Overall, women of reproductive age spend 68 percent more out of pocket than men on health care, in part because their reproductive health care needs require more frequent health care visits and are not always adequately covered by their insurance” (emphasis added). See also, for instance, U.S. Center for Medicare & Medicaid Services, National Health Care Spending By Gender and Age: 2004 Highlights (concluding that, as to total per capita spending, both out-of-pocket and otherwise, “Females 19-44 years old spent 73 percent more per capita than did males of the same age”), and a 2010 New York Times article with the telling title, “Overhaul Will Lower the Costs of Being a Woman.”

Now I certainly see the case for giving women coverage for such greater expenses. If it wasn’t for women’s reproduction, I wouldn’t be writing this today. And the premise of the ACA is that health insurance should be made available to people in large measure without regard to their expected health care costs, and in particular without regard to sex. (Consider the exclusion for preexisting conditions, for instance.)

But nonetheless, the interest here isn’t in preventing intentional sex discrimination by employers, or even employer provision of benefits that are worth less to women than to men. Rather, it appears to be an interest in making sure that employers compensate women for the health care cost inequality that largely stem from the biological differences between men and women. I don’t know of any precedents resolving whether that is a compelling interest for RFRA purposes, or even suggesting an answer to that question.