The contraception mandate is illegal

David Rivkin and Ed Whelan make a convincing case that President Obama’s contraception mandate violates the Religious Freedom Restoration Act:

The 1993 law restored the same protections of religious freedom that had been understood to exist [before Employment Division v. Smith]. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.

The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

(Via Hot Air.)

By the way, the RFRA passed the House unanimously, passed the Senate 97-3, and was signed by Bill Clinton.

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