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Published online by Cambridge University Press: 30 December 2024
The Affordable Care Act’s preventive services mandate requires private insurance plans to serve public health goals. But the employers that facilitate access to insurance for more than half the population hold political views and economic interests that may run counter to public interests. And now, in the name of for-profit employers’ religious rights, the courts are eroding the legal foundations of privately financed public health. Religious objections to the preventive services mandate — of which Braidwood Management, Inc. v. Becerra is just the most recent high-profile example — have become a site of opposition to public health. Courts have radically revised standards for religious exemption, adopting an individualistic frame that discounts population-level effects. Recent decisions could invite free exercise claims that go to the heart of securing population health through the workplace.
1 Preventive Services Covered by Private Health Plans Under the Affordable Care Act, KFF (Feb. 28, 2024) [hereinafter Preventive Services Covered Under ACA], https://www.kff.org/womens-health-policy/fact-sheet/preventive-services-covered-by-private-health-plans/ [https://perma.cc/Q2TH-WPLN].
2 Id.
3 627 F. Supp. 3d 624 passim (N.D. Tex. 2022).
4 198 U.S. 45 (1905).
5 See, e.g., Jennifer L. Pomeranz, United States: Protecting Commercial Speech Under the First Amendment, 50 J.L. Med. & Ethics 265 passim (2022); Claudia E. Haupt & Wendy E. Parmet, Public Health Originalism and the First Amendment, 78 Wash. & Lee L. Rev. 231 passim (2021); Seth E. Mermin & Samantha K. Graff, The First Amendment and Public Health, at Odds, 39 Am. J.L. & Med. 298 passim (2013); Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: A Population-Based Approach to the First Amendment, 39 Loy. L.A. L. Rev. 363 passim (2006).
6 See, e.g., Wendy E. Parmet, From the Shadows: The Public Health Implications of the Supreme Court’s COVID-Free Exercise Cases, 49 J.L. Med. & Ethics 564 passim (2021); Dorit R. Reiss, Vaccines Mandates and Religion: Where Are We Headed with the Current Supreme Court?, 49 J.L. Med. & Ethics 552 passim (2021).
7 Sara Rosenbaum, The Patient Protection and Affordable Care Act: Implications for Public Health Policy and Practice, 126 Pub. Health Reps.: L. & Pub. Health 130, 130 (2011).
8 Id. at 133 (describing the preventive services mandate as part of the ACA’s investments in public health); see also Gwendolyn R. Majette, PPACA and Public Health: Creating a Framework to Focus on Prevention and Wellness and Improve the Public’s Health, 39 J.L. Med. & Ethics 366, 371–73 (2011).
9 Privatization of public health department services began in the 1970s. It expanded considerably in the 80s and 90s, prompting concerns about accountability and emergency preparedness. Christopher Keane et al., Perceived Outcomes of Public Health Privatization: A National Survey of Local Health Department Directors, 79 Millbank Q. 115, 115–18, 124, 132–33 (2001). More broadly, public health policy increasingly relies on private institutions, especially employers, to support the capacity of individuals to adopt health-protective behaviors, such as quarantining, isolation, and social distancing. Nan D. Hunter, “Public-Private” Health Law: Multiple Directions in Public Health, 10 J. Health Care L. & Pol’y 89, 109–13 (2007).
10 In 2022, 65.6 percent of the U.S. population was covered by private insurance for all or part of the calendar year. Katherine Keisler-Starkey et al., U.S. Census Bureau, P60-281, Health Insurance Coverage in the United States: 2022 1, 3 (2023), https://www.census.gov/content/dam/Census/library/publications/2023/demo/p60-281.pdf [https://perma.cc/3WP6-SPPS]. 54.5 percent of the total population was covered by employment-based insurance. Id. at 3.
11 Brief for Illinois et al. as Amici Curiae Supporting Defendants at 5, Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624 (N.D. Tex. 2022) (No. 4:20-cv-00283-O).
12 See Inst. of Med., Primary Care and Public Health: Exploring Integration to Improve Population Health 17, 27 (2012).
13 Inst. of Med., The Future of Public Health 41 (1988).
14 Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint 15–17 (3d ed. 2016).
15 Id. at 17.
16 Id.
17 See, e.g., Paul Starr, The Social Transformation of American Medicine 191–92 (1982) (describing the historical operation of tuberculosis clinics and “baby clinics,” by city health departments); id. at 193 (describing “public health sponsorship of preventive medical examinations,” including by state health departments in the early twentieth century); George Rosen, A History of Public Health 279 (Johns Hopkins Univ. Press, 2015) (1958) (describing historical surveys of health centers providing a range of services, including “child welfare” “anti-tuberculosis,” and “venereal disease clinics”); id. at 208; 210–12 (describing prenatal, infant, and early childhood preventive services sponsored by city, state, and federal programs); Jonathon P. Leider et al., How Much Do We Spend? Creating Historical Estimates of Public Health Expenditures in the United States at the Federal, State, and Local Levels, 39 Ann. Rev. Pub. Health 471, 473 (2018) (describing federal support for state and local health departments to deliver maternal and child health services under Titles V and VI of the Social Security Act of 1935); Cheryl A. Vamos et al., Approaching 4 Decades of Legislation in the National Family Planning Program: An Analysis of Title X’s History from 1970 to 2008, 101 Am. J. Pub. Health 2027, 2027 (2011) (describing the history of public funding for family planning clinics, with grantees including health departments and other public agencies); Inst. of Med., Financing Vaccines in the 21st Century: Assuring Access and Availability 81–82 (2003) (describing historical reliance on “stand-alone public clinics” for adult and childhood vaccinations).
18 See supra note 9.
19 Keane et al., supra note 9, at 203, 277.
20 Halley S. Faust, Historical Perspectives on Structural Barriers to Prevention, in Prevention vs. Treatment: What’s the Right Balance? 111, 116 (Halley S. Faust & Paul T. Menzel eds., 2011) (discussing health programs developed for workers who built the Grand Coulee Dam in 1938, which Henry J. Kaiser extended to workers in shipyards and steel mills during World War II).
21 Id. at 117; see also id. at 120–21 (describing health insurers’ “skepticism about the effectiveness of prevention interventions when done as individual clinical services in primary care settings” and concerns about the potential for fraudulent billing by physicians).
22 Social Security Amendments of 1965, Pub. L. No. 89-97, § 1862, 79 Stat. 286, 325 (1965) (codified as amended at 42 U.S.C. § 1395y(a)(1)(A)); see also Faust, supra note 20, at 126.
23 Id. at 127; Social Security Amendments of 1967, Pub. L. No. 90-248, § 302, 81 Stat. 821, 929 (1968) (codified as amended at 42 U.S.C. § 1396d(a)(4)(B)).
24 Sara Rosenbaum, When Old Is New: Medicaid’s EPSDT Benefit at Fifty, and the Future of Child Health Policy, 94 Millbank Q. 716, 718 (2016).
25 Steven H. Woolf & David Atkins, The Evolving Role of Prevention in Health Care: Contributions of the U.S. Preventive Services Task Force, 20 Am. J. Preventive Med. 13, 13–14 (2001).
26 U.S. Preventive Servs. Task Force, Guide to Clinical Preventive Services: An Assessment of the Effectiveness of Interventions (Michael Fisher ed., 1989).
27 Faust, supra note 20 at 121.
28 Id. at 126 (describing bills authorizing coverage for pneumococcal vaccination in 1981, hepatitis B vaccination in 1984, mammography in 1988, and pap smears in 1989). Authorization for coverage of vaccinations (now including COVID-19) is codified at 42 U.S.C. § 1395x(s)(10)(A). Authorization for coverage of cancer and other screenings recommended by the USPSTF is now codified at 42 U.S.C. § 1395x(ddd)(1).
29 Gail A. Jensen & Michael A. Morrisey, Employer-Sponsored Health Insurance and Mandated Benefit Laws, 77 Milbank Q. 425, 428 tbl.1 (1999) (showing that most states mandated coverage of mammography by 1999).
30 Faust, supra note 20, at 126.
31 Maris Ann Bondi et al., Employer Coverage of Clinical Preventive Services in the United States, 20 Am. J. Health Promotion 214, 215 (2006).
32 Id. at 218 tbl.3.
33 Victoria Craig Bunce & J.P. Wieske, Council for Affordable Health Ins., Health Insurance Mandates in the States 2009, 56 tbl.2 (2009), https://www2.cbia.com/ieb/ag/CostOfCare/RisingCosts/CAHI_HealthInsuranceMandates2009.pdf [https://perma.cc/FQA6-DM9Z] (report from a nonprofit organization representing insurers documenting state coverage mandates for various preventive services as of 2009, including: well-child visits (34 states), mammography (50), cervical cancer screening (31), colorectal cancer screening (33), prostate cancer screening (36), ovarian cancer screening (7), contraception (29), HPV vaccination (13), shingles vaccination (1), and smoking cessation (5)).
34 Some employers offer a self-insured plan whereby the employer pays claims directly from its own funds, typically while relying on third-party contractors to administer provider networks and utilization management. 2023 Employer Health Benefit Survey: Report, KFF (Oct. 18, 2023), https://www.kff.org/report-section/ehbs-2023-section-10-plan-funding/ [https://perma.cc/JU2Q-RGAC]. Other employers fully insure by contracting with one or more health insurance companies to offer health plans to employees. Id. Sixty-five percent of employees are covered by self-insured plans, which federal law shields from state health insurance regulations. Id.
36 Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 51, fig.3-1 (2011) (in 2010, 50 states mandated mammography coverage, 35 mandated coverage for well-child visits, 34 mandated coverage of colorectal cancer screening, 29 mandated coverage of cervical cancer screening, 29 states mandated coverage of contraception, and 25 mandated some form of mental health coverage, but only 3 required coverage of chlamydia screening and only 1 required coverage of smoking cessation); Bondi et al., supra note 31, at 214 (reporting results of 2001 survey of employer health plans, finding that “coverage of physical examinations, immunizations, and screenings generally exceeded 50%,” but far fewer employers covered services for substance use disorders: only 20% covered tobacco cessation and only 18% of employers provided services for alcohol problem prevention).
37 42 U.S.C. § 300gg-13 (2018).
38 U.S. Preventive Servs. Task Force, Procedure Manual 8 (2021), https://uspreventiveservicestaskforce.org/uspstf/sites/default/files/2023-11/procedure-manual-2023.pdf [https://perma.cc/R25M-DU7M].
39 Id. at 22.
40 Advisory Committee on Immunization Practices Policies and Procedures, Ctrs. for Disease Control & Prevention (2022), https://www.cdc.gov/vaccines/acip/committee/downloads/Policies-Procedures-508.pdf [https://perma.cc/C793-XWT3].
41 See Inst. of Med., supra note 12, at 153-55.
42 Women’s Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.gov/womens-guidelines [https://perma.cc/MJ8W-8TQG].
43 Id.
44 Preventive Services Covered Under ACA, supra note 1.
45 Prevention of Human Immunodeficiency Virus (HIV) Infection: Preexposure Prophylaxis, U.S. Preventive Servs. Task Force (Aug. 22, 2023), https://www.uspreventiveservicestaskforce.org/uspstf/recommendation/prevention-of-human-immunodeficiency-virus-hiv-infection-pre-exposure-prophylaxis [https://perma.cc/2MA7-55G8].
47 Faust, supra note 20, at 119.
48 For a discussion of public health’s population perspective, see Wendy E. Parmet, Populations, Public Health, and the Law 14 (2009).
49 Lindsay F. Wiley, Medicaid for All? State-Level Single-Payer Health Care, 79 Ohio St. L.J. 843, 890 (2018).
50 Hundreds of lawsuits were filed. Three reached the Supreme Court: Burwell v. Hobby Lobby, 573 U.S. 682 (2014); Zubik v. Burwell, 578 U.S. 403 (2016); and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
51 Braidwood Mgmt. v. Becerra, 666 F. Supp. 3d 613, 626 (N.D. Tex. 2022).
52 First Amended Complaint at ¶ 29, Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624 (N.D. Tex. 2022) (No. 4:20-cv-00283-O). The plaintiffs omitted these objections from their amended complaint, sought to revive them in a motion for summary judgment, but eventually conceded that their RFRA claim was limited to PrEP. Braidwood, 627 F. Supp. 3d at 637 n.3.
53 42 U.S.C. § 2000bb(b) (2018) (providing that the federal government may only substantially burden a person’s exercise of religion when the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest”).
54 Hobby Lobby, 573 U.S. at 692.
55 See Ira C. Lupu, The Failure of RFRA, 20 U. Ark. Little Rock L. Rev. 575, 594 n.86 (1998) (concluding, based on systematic review of first years of RFRA, that substantial burden requirement “accounted for over 70% of the RFRA defeats in court”).
56 See, e.g., Erzinger v. Regents of Univ. of Cal., 187 Cal. Rptr. 164, 166 (1983) (rejecting religious objections to abortion coverage in student plan because the objectors only paid a small portion and did not have to use, have, perform, or endorse abortion).
57 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 681 (2020) (describing the Court’s case law).
58 See Gilardi v. Sebelius, 926 F. Supp. 2d 273, 282 (D.D.C. 2013).
59 573 U.S. at 726.
60 Id. (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006)).
61 Id. (citing O Centro, 546 U.S. at 431).
62 Holt v. Hobbs, 574 U.S. 352, 362–63 (2015) (courts must “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants ….”).
63 Tandon v. Newsom, 593 U.S. 61, 62 (2021).
64 593 U.S. 522, 542 (2021); see also Mast v. Fillmore Cnty., 141 S. Ct. 2430, 2432–33 (2021) (Gorsuch, J., concurring in grant of certiorari and remand in light of Fulton v. City of Philadelphia) (noting that courts must give “due weight to exemptions other groups enjoy[,]” and governments must “offer a compelling explanation why the same flexibility extended to others cannot be extended to” religious objectors).
65 See Fulton, 593 U.S. at 534, 542.
66 Maryville Baptist Church v. Beshear, 957 F.3d 610, 614 (6th Cir. 2020) (reviewing public health precautions).
67 Hobby Lobby, 573 U.S. at 728.
68 Holt, 574 U.S. at 368 (quoting Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436 (2006)).
69 Korte v. Sebelius, 735 F.3d 654, 686 (7th Cir. 2013); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298–99 (D. Colo. 2012), aff’d, 542 F. App’x 706 (10th Cir. 2013). For successful arguments against coverage of gender-affirming care, see Christian Emps. All. v. U.S. Equal Opportunity Comm’n, No. 1:21-CV-195, 2022 WL 1573689, at *9 (D.N.D. May 16, 2022).
70 Hobby Lobby, 573 U.S. at 728.
71 Elizabeth Sepper & Lindsay F. Wiley, The Religious Liberty Challenges to American-Style Social Insurance, 58 U.C. Davis L. Rev. (forthcoming 2024) (manuscript at 48–49).
72 Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624, 652 (N.D. Tex. 2022).
73 Id.
74 Lindsay F. Wiley, The Struggle for the Soul of Public Health, 41 J. Health Pols. Pol’y & L. 1083, 1091 (2016) (describing the dichotomy between public health approaches and individual responsibility and how victim-blaming undermines collective responses to health issues).
75 Braidwood, 627 F. Supp. 3d at 653 (quoting Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657 (2020) (Alito, J., concurring)).
Id.
76 Id. at 653.
77 Id. (citing Burwell v. Hobby Lobby, 573 U.S. 682, 727 (2014)).
78 Id. at 654.
79 Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1511 (2015).
80 See Braidwood, 627 F. Supp. 3d at 654.
81 Id.
82 Nicholas Bagley & A. Mark Fendrick, A Texas Judge Just Invalidated the Preventive Services Mandate. What Happens Next?, Health Affs. (Mar. 30, 2023), https://www.healthaffairs.org/content/forefront/texas-judge-just-invalidated-preventive-services-mandate-happens-next (last visited Apr. 13, 2024).
83 Before Hobby Lobby was decided, several courts of appeals demanded the government employ a public program as a less restrictive means. See Korte v. Sebelius, 735 F.3d 654, 686 (7th Cir. 2013); Newland v. Sebelius, 881 F. Supp. 2d 1287, 1298–99 (D. Colo. 2012), aff’d, 542 F. App’x 706 (10th Cir. 2013). More recent decisions granting exemption coverage of gender-affirming care have also concluded that the government must adopt direct provision or subsidy, but not employer regulation, to achieve its goals. See, e.g., Christian Emps. All. v. U.S. Equal Opportunity Comm’n, No. 1:21-CV-195, 2022 WL 1573689, at *9 (D.N.D. May 16, 2022); Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 609 (8th Cir. 2022).
84 See supra note 45.
85 42 U.S.C. § 300gg–13(a)(2) (2018).
86 Burwell v. Hobby Lobby Stores, 573 U.S. 682, 733 (2014).
87 See Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause, 131 Yale L.J. F. 1106 (2022); see generally Dorit R. Reiss, Thou Shalt Not Take the Name of the Lord Thy God in Vain: Use and Abuse of Religious Exemptions from School Immunization Requirements, 65 Hastings L.J. 1551 (2014) (discussing the abuse of religious exemptions).
88 U.S. Navy SEALS 1-26 v. Biden, 578 F. Supp. 3d 822, 835 (N.D. Tex. 2022); Poffenbarger v. Kendall, 588 F. Supp. 3d 770, 794–95 (S.D. Ohio 2022).
89 Dr. A. v. Hochul, 142 S. Ct. 2569, 2571 (2022) (Thomas, J., dissenting); Does 1–3 v. Mills, 142 S. Ct. 17, 20 (2021) (Gorsuch, J., dissenting) (both involving COVID-19 vaccine mandates for health care workers with medical exemptions).
90 Meredith Wadman, Abortion Opponents Protest COVID-19 Vaccines’ Use of Fetal Cells, Science (June 5, 2020), https://www.science.org/content/article/abortion-opponents-protest-covid-19-vaccines-use-fetal-cells.
91 Nearly 40 Million Children Are Dangerously Susceptible to Growing Measles Threat, Ctrs. for Disease Control & Prevention (Nov. 23, 2022, 1:00 PM), https://www.cdc.gov/media/releases/2022/p1123-measles-threat.html
92 Preventive Services Covered Under ACA, supra note 1.
93 29 U.S.C. § 1185a (2018); Kaye Pestaina, Mental Health Parity at a Crossroads, KFF (Aug. 18, 2022), https://www.kff.org/mental-health/issue-brief/mental-health-parity-at-a-crossroads/ [https://perma.cc/2A4L-Z8D5].
94 Mental Health Benefits: State Laws Mandating or Regulating, Nat’l Conf. of State Legislatures (Dec. 30, 2015), https://www.ncsl.org/health/mental-health-benefits [https://perma.cc/N65Y-VYKW].
95 See Kristine Hartog & Kathryn M. Gow, Religious Attributions Pertaining to the Causes and Cures of Mental Illness, 8 Mental Health, Religion & Culture 263, 272–73 (2005); John R. Peteet, Approaching Religiously Reinforced Mental Health Stigma: A Conceptual Framework, 70 Psychiatric Servs. 846, 847 (2019).
96 Marcia Webb et al., Representation of Mental Illness in Christian Self-Help Bestsellers, 11 Mental Health, Religion & Culture 697, 704 (2008).
97 Id. at 706.
98 Id. (quoting Joel Osteen, Your Best Life Now: 7 Steps to Living at Your Full Potential 102 (2004)).
99 Lily A. Mathison et al., Stigma and Mental Health in the Abrahamic Religious Traditions, in The Cambridge Handbook of Stigma and Mental Health 347, 354 (David L. Vogel & Nathaniel G. Wade eds., 2022).
100 Bob Smietana, Mental Health: Half of Evangelicals Believe Prayer Can Heal Mental Illness, Lifeway Rsch. (Sept. 17, 2013), https://research.lifeway.com/2013/09/17/mental-health-half-of-evangelicals-believe-prayer-can-heal-mental-illness/ [https://perma.cc/6DEJ-XAXD].
101 Jennifer Huang Harris, Mental Illness Stigma in Christian Communities, in Christianity and Psychiatry 21, 28 (John R. Peteet et al. eds., 2021).
102 See generally, JoAnn Volk et al., Health Care Sharing Ministries: What Are the Risks to Consumers and Insurance Markets?, Commonwealth Fund (Aug. 2018), https://www.commonwealthfund.org/sites/default/files/2018-08/Volk_hlt_care_sharing_ministries.pdf [https://perma.cc/7M5R-CK33].
103 Rachel E. Sachs, Religious Exemptions to the Individual Mandate: Health Care Sharing Ministries and the Affordable Care Act, in Law, Religion, and Health in the United States 143, 145–46 (Holly Fernandez Lynch et al. eds., 2017).
104 Commentators typically date the Lochner era from the 1897 case of Allgeyer v. Louisiana to the 1937 decision in West Coast Hotel Co. v. Parrish. Lochner Era, Legal Info. Inst., https://www.law.cornell.edu/wex/lochner_era [https://perma.cc/LEH6-THRQ] (last updated June 2023).
105 See e.g., Parmet & Smith, supra note 5, at 430 (“Public health and the First Amendment may be on a collision course.”); Joshua M. Sharfstein, Public Health and the First Amendment, 93 Milbank Q. 459 (2015).
106 Sepper, supra note 71, at 1508.
107 198 U.S. 45, 58, 61 (1905).
108 Lochner, 198 U.S. at 69–72 (Harlan, J., dissenting) (reviewing epidemiological evidence).
109 Matthew S.R. Bewig, Laboring in the “Poisonous Gases”: Consumption, Public Health, and the Lochner Court, 1 N.Y.U. J.L. & Liberty 476, 476 (2005); see also Wendy E. Parmet, From Slaughter-House to Lochner: The Rise and Fall of the Constitutionalization of Public Health, 40 Am. J. Legal Hist. 476, 497–99 (1996).
110 Id. at 57 (emphasis added).
111 See id. at 58–59.
112 See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating a child labor law); Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922) (invalidating a federal tax on goods produced by child labor).
113 West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391– 394 (1937) (upholding law creating minimum wage and safety conditions for women and minor workers under the Due Process Clause).
114 E.g., United States v. Lee, 455 U.S. 252, 261 (1982) (refusing to exempt employer from Social Security obligations); Droz v. Comm’r, 48 F.3d 1120, 1121–23 (9th Cir. 1995) (rejecting similar claim under RFRA); Tony & Susan Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 306 (1985) (same for federal wage requirements); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 631 (7th Cir. 2000) (same for unemployment insurance).
115 See Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459, 461 (N.Y. 2006); Catholic Charities of Sacramento, Inc. v. Superior Ct., 85 P.3d 67, 89, 94–95 (Cal. 2004).
116 E.g., Janus v. Am. Fed’n of State, Cnty & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting); Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2380–83 (2018) (Breyer, J., dissenting); Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199, 1207–09 (2015); Jedediah Purdy, Neoliberal Constitutionalism: Lochnerism for a New Economy, 77 L. & Contemp. Probs. 195, 197–98 (2014).
117 See sources cited supra note 5.
118 Sepper & Wiley, supra note 71, at 1464.
119 Id. (drawing on the influential definition from Cass R. Sunstein, Lochner’s Legacy, 87 Colum. L. Rev. 873 (1987)).
120 Id. at 1455.
121 Thomas C. Berg, Religious Accommodations and the Welfare State, 38 Harv. J.L. & Gender 103, 148 (2015) (“[R]eligious accommodation does not interfere nearly as greatly with regulation as Lochner did.”).
122 See DeOtte v. Azar, 393 F. Supp. 3d 490, 514 (N.D. Tex. 2019).
123 See Kelley v. Azar, No. 4:20-CV-00283-O, 2021 WL 4025804, at *4 (N.D. Tex. Feb. 25, 2021).
124 Id. For a similar argument from a small employer not subject to the employer mandate and unable to purchase a plan that excluded contraception under an injunction, see Annex Med. v. Burwell, 769 F.3d 578, 581 (8th Cir. 2014).
125 Kelley, 2021 WL 4025804, at *5.
126 Id.
127 The opinion advised the plaintiffs to pursue an amendment to the earlier injunction. Id. at *8.
128 Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 83 Fed. Reg. 57536 (Nov. 15, 2018) (codified at 45 C.F.R. § 147.132).
129 Nelson Tebbe, A Democratic Political Economy for the First Amendment, 105 Cornell L. Rev. 959, 998 (2020) (observing that Lochnerian interpretations of free exercise apply to administrative agencies as well as courts); Mila Sohoni, The Trump Administration and the Law of the Lochner Era, 107 Geo. L.J. 1323, 1325 (2019) (describing the Trump regulation as part of renovating Lochner).
130 Joanna Wuest & Briana Last, Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State, J.L. Med. & Ethics (forthcoming 2024) (manuscript at 4–5) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4306283 [https://perma.cc/882U-X63V]).
131 Id. at 3.
132 Id. at 14.
133 Id. at 29.
134 Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624, 647 (N.D. Tex. 2022).