May I Be Excused? Smith's Individualized Governmental Assessment Exception and the HHS Mandate

Abstract

The controversial HHS Mandate, which requires non-exempt employers to include preventive services, including contraceptives and abortifacients, in the healthcare plans provided for their employees, has led to numerous lawsuits by both for-profit and non-profit corporations and organizations. These groups contend that the law is in violation of both the First Amendment's Free Exercise Clause and the Religious Freedom Restoration Act, because compliance with it causes them to violate their religious beliefs. This Note analyzes the constitutionality of the Mandate in the context of the individualized governmental assessment exception, an exception to the Supreme Court's "neutral, generally applicable" rule set forth in Employment Division v. Smith. Part I of this Note explores the state of free exercise jurisprudence prior to Smith, followed by an examination of the Court's decision in Smith, as well as the background of the individualized governmental assessment exception. Part II examines several circuit court decisions representing both the broad and narrow interpretations of the exception. Part III analyzes the interpretations discussed in Part II, particularly in the context of the HHS Mandate, and concludes that while a court analyzing the Mandate under the narrow approach to the individualized governmental assessment exception would not find a violation of the First Amendment's Free Exercise Clause, a court analyzing the Mandate under the broad approach most likely would.