Compelling Interests and Contraception

Authors

Neil S. Siegel, Texas A&M University School of LawFollow
Reva Siegel, Yale Law School

Document Type

Article

Publication Date

5-2015

Journal Title

Connecticut Law Review

ISSN

0010-6151

Abstract

On the eve of Griswold v. Connecticut’s fiftieth anniversary, employers are bringing challenges under the Religious Freedom Restoration Act (RFRA) to federal laws requiring them to include contraception in the health insurance benefits that they offer their employees. In Burwell v. Hobby Lobby Stores, five Justices asserted that the government has compelling interests in ensuring employees access to contraception, but did not discuss those interests in any detail. In what follows, we clarify those interests by connecting discussion in the Hobby Lobby opinions and the federal government’s briefs to related cases on compelling interests and individual rights in the areas of race and sex equality.

The government’s compelling interests, we argue, are best understood from within two horizons: they encompass not only core concerns of the community in promoting public health and facilitating women’s integration in the workplace, but also crucial concerns of the employees who are the intended beneficiaries of federal law’s contraceptive coverage requirement — interests that sound in bodily integrity, personal autonomy, and equal citizenship. Further, as we show, a full accounting of the government’s compelling interests attends both to their material and expressive dimensions. This more comprehensive account of the government’s compelling interests in providing employees access to contraception matters both in political debate and in RFRA litigation as courts determine whether the government has pursued its interests by the least restrictive means. The more comprehensive account offered here is less susceptible to compromise and tradeoffs than is an account focused only on material interests in public health and contraceptive cost.

First Page

1025

Last Page

1043

Num Pages

19

Volume Number

47

Issue Number

4

Publisher

University of Connecticut School of Law

Recommended Citation

Neil S. Siegel & Reva Siegel, Compelling Interests and Contraception, 47 Conn. L. Rev. 1025 (2015).
Available at: https://scholarship.law.tamu.edu/facscholar/2246

File Type

PDF