A. The Historical Division Between (Mostly) Private Health Care and (Mostly) Public Prevention

The line between health care and public health is difficult to define, particularly in the wake of active efforts to integrate the two.Footnote ¹² While health care involves delivering items and services to individual patients, public health involves “organized community efforts aimed at the prevention of disease and promotion of health.”Footnote ¹³ Both public health and health care workers engage in primary prevention (i.e., screening individuals for risk factors, counseling them to adopt protective behaviors, and administering vaccinations or prescribing medications to prevent the onset of illness or injury), secondary prevention (i.e., screening asymptomatic individuals to catch early-stage disease before its effects are even noticeable), and tertiary prevention (i.e., diagnosing and treating symptomatic patients to prevent progression of a disease or injury).Footnote ¹⁴ But when a primary care doctor performs these tasks, she applies her medical knowledge and skill to an individual patient.Footnote ¹⁵ When a public health agency engages in these tasks, its responsibility is to the population as a whole and its interventions are informed by epidemiological findings about the broader determinants of disease and injury.Footnote ¹⁶

Historically, a separate, largely publicly financed and administered system provided certain clinical services with high public health importance, usually at low or no cost. These include vaccinations, screening, and treatment for highly communicable diseases, services for family planning and prenatal care, and early childhood programs to identify and mitigate the effects of poor nutrition and common childhood illnesses.Footnote ¹⁷ Public programs tend to prioritize clinical services that have long-term benefits and population-level effects. Local public health departments typically run most of these clinics, though in recent years departments have increasingly relied on private contractors.Footnote ¹⁸ Many of these programs have roots in early twentieth-century sanitation campaigns aimed at providing health education, testing, and vaccinations — especially for people living in poverty, immigrant workers, mothers of young children, and people at risk of STIs.Footnote ¹⁹

In the early decades of private health insurance, coverage of preventive services was spotty to nonexistent. A few of the pre-paid health plans employers created in the 1930s and 1940s incorporated some degree of preventive care in an effort to keep workers healthy — in the short-term, at least — so they could perform physically demanding labor.Footnote ²⁰ When commercial health insurance plans became widely available in the mid-twentieth century, they tended to exclude preventive services for two reasons: most physicians did not yet appreciate the value of prevention and the costs of preventive services were predictable, unlike the “unexpected catastrophic events for which insurance was designed.”Footnote ²¹

When Medicare was first established in the mid-1960s to provide public health insurance for people who are elderly or disabled, it largely mirrored the private insurance plans available at the time, which gave short shrift to preventive services. By statute, Medicare excluded “items or services … which are not reasonable and necessary for the diagnosis or treatment of illness or injury,” omitting primary and secondary prevention.Footnote ²²

Medicaid, by contrast, was an early adopter of a preventive approach. In 1967 — just two years after passage of the initial Medicare and Medicaid authorizing legislation — Congress mandated that states ensure Medicaid coverage of early and periodic screening, in addition to diagnostic and treatment services, for children up to age 21.Footnote ²³ This requirement tailored Medicaid coverage to the needs of low-income families, whose children were harmed by significant risk factors and had much to gain from prevention.Footnote ²⁴

Over time, researchers began to prove the economic value of preventive clinical services and prevention was slowly integrated into the health care and insurance sectors. In 1984, the U.S. Public Health Service convened the U.S. Preventive Services Task Force (USPSTF) — a private organization of experts whose mission is to support primary care providers with expert guidance.Footnote ²⁵ Five years later, the USPSTF issued its first report on evidence-based recommendations for preventive care.Footnote ²⁶ Private insurers and employers became more willing to finance these services and primary care providers became more interested in providing them.Footnote ²⁷ Throughout the 1980s and 1990s, Congress added Medicare coverage for specific vaccinations and cancer screening tests.Footnote ²⁸ Political will grew for state legislatures to require private plans to cover certain preventive services, especially mammography screening.Footnote ²⁹ This rise of health insurance coverage for preventive services in the late twentieth century was accompanied by a “countervailing” trend of “reduction in services provided by public health departments because of reduced budgets and personnel nationwide.”Footnote ³⁰

In the years leading up to the ACA, when employers had greater discretion over which preventive services they included in their health benefit plans, there were wide discrepancies between the coverage they elected to provide and the preventive services that most effectively lowered long-term mortality and morbidity.Footnote ³¹ By the 2000s, most employers included some level of routine check-ups, screenings, and immunizations in their benefit plans — and more than three-quarters covered physical examinations, childhood immunizations, and mammography screening — but the coverage was far from comprehensive.Footnote ³² Some, but not all, of these services were required by some, but not all, states.Footnote ³³ State legislatures adopted piece-meal mandates reflecting their political priorities but self-insuring employers were shielded from these requirements by federal preemption.Footnote ³⁴ Employers selectively chose to cover additional preventive services furthering their economic interests. Coverage rates for childhood vaccinations and cancer screenings were considerably higher than for smoking cessation, counseling for substance and alcohol use disorders, and screening for STIs.Footnote ³⁵ The latter services were less likely to be mandated by states and less likely to be covered by employers despite the evidence of their benefits for individual and public health — probably because they disproportionately benefit marginalized groups.Footnote ³⁶

B. The ACA’s Preventive Services Mandate

The ACA established a federal floor of coverage mandates tied directly to epidemiological findings that the benefits outweigh the risks at the population level. It required most health plans to cover preventive services recommended by three expert advisory bodies — the USPSTF, the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA) — without any out-of-pocket payments that could discourage people from getting the care they need.Footnote ³⁷

These advisory bodies prioritize public health impact. The USPSTF selects topics for its assessments based in part on their “public health importance,” which it assesses in light of the “potential of [a] preventive service to reduce” population-level “burden of suffering.”Footnote ³⁸ Its assessments may take into account effects of interventions that “extend beyond the individual to society as a whole or to another individual.”Footnote ³⁹ ACIP includes both public health and medical experts charged with “the development and improvement of public health policies.”Footnote ⁴⁰ In the years leading up to the ACA, HRSA’s strategic plan adopted rhetoric characteristic of public health, focusing on “healthy communities” and seeking “to impact the broader determinants of health” as part of its mission “to improve health and achieve health equity.”Footnote ⁴¹

In theory, coverage of evidence-based preventive health services that improve individual and population health should be widely supported. Indeed, the ACA’s preventive services mandate includes many uncontroversial services, such as cancer screenings and routine check-ups. But some services recommended by HRSA, ACIP, and USPSTF — particularly those relating to reproductive, sexual, and behavioral health — face considerable political and ideological opposition. Thanks to HRSA recommendations, Department of Health and Human Services (HHS) regulations require insurers and employers to cover FDA-approved contraceptive methods — including oral contraceptives, intrauterine devices, emergency contraceptives, and sterilization.Footnote ⁴² Among many other immunizations, ACIP recommends the HPV vaccine, which protects against a common STI that causes cervical and other cancers.Footnote ⁴³ Because of USPSTF recommendations, plans also must include screening tests and prevention counseling for behavioral health conditions such as substance use disorders and for infections that are often transmitted through sexual activity or injection drug use.Footnote ⁴⁴ In 2019, USPSTF issued recommendations for pre-exposure prophylaxis (PrEP), a daily medication that prevents HIV, adding it to the list of mandated services.Footnote ⁴⁵

C. Employer Incentives and Public Health Goals

Employers are now responsible for more than half of the population’s access to evidence-based preventive services that reduce morbidity and mortality by enabling early detection and intervention and preventing onward transmission of communicable diseases.Footnote ⁴⁶ But the fit between public health and employer responsibility is uneasy.

Because employees and their dependents tend to cycle through multiple types of insurance coverage throughout their lifespan, employers lack incentives to account for long-term consequences when designing health benefits. As Dr. Halley Faust explains,

For example, the employer who covers a teenage dependent’s vaccination against HPV is unlikely to reap the financial savings when she does not develop cervical cancer decades later.

Employers also do not share the population perspective of public health.Footnote ⁴⁸ They lack incentives to protect people not covered by their health plans. As one of us has previously written, “chances are slim that the insurance company that decides how much a pediatrician is paid to talk with a vaccine-hesitant parent about her concerns will be the same company responsible for the costs of treating an infant who is infected by the unvaccinated child of the hesitant parent.”Footnote ⁴⁹ Services like vaccination, testing, and medication for communicable diseases protect people other than the individual patient by preventing onward transmission to social contacts and sexual partners. But in the absence of publicly provided services, they are typically financed through employee benefits that attach to individual plan members.

A. The Shift Toward an Individualistic Frame for Religious Liberty Claims

Over the last decade, the Supreme Court has revised each step in religious liberty doctrine in a way that rejects the population-level focus of public health in favor of narrower, more individualistic framing. Under the Religious Freedom Restoration Act (RFRA) — which forms the basis for much of the litigation against the preventive services mandate — a plaintiff may bring suit alleging that the federal government has substantially burdened their free exercise of religion.Footnote ⁵³ If they make out their prima facie case, the court must grant an exemption from the challenged governmental action or law unless it is the least restrictive means to further a compelling governmental interest.Footnote ⁵⁴

First, consider the question of substantial burden. Courts once rigorously questioned whether the burden on a plaintiff’s religious exercise was substantial.Footnote ⁵⁵ In earlier cases involving objections to coverage of specific health care, the courts understood the burdens on religion to be attenuated and any complicity diffused by the collective enterprise of insurance.Footnote ⁵⁶ But beginning in 2014 with Burwell v. Hobby Lobby, the Supreme Court’s decisions on contraceptive coverage “made it abundantly clear that, under RFRA, [HHS] must accept the sincerely held complicity-based objections of religious entities.”Footnote ⁵⁷ This deferential approach to substantial burden removes the primary limiting mechanism for RFRA claims. Under what one court described as an “any burden” standard, a religious objector’s say-so shifts the burden of proof to the government.Footnote ⁵⁸

Second, collective interests once treated as compelling — public health chief among them — are revised and narrowed. In evaluating religious challenges to the contraceptive mandate, the Hobby Lobby Court described the interest in public health as “couched in very broad terms” and perhaps too general to support requiring coverage of preventive services.Footnote ⁵⁹ Courts, it instructed, must “loo[k] beyond broadly formulated interests” to find sufficient justification for governmental intrusion on religious liberty.Footnote ⁶⁰ Of course, the more narrowly the interest is defined, the less compelling it will seem.

Perhaps more important still, the Hobby Lobby Court tells us that judges must “scrutinize[e] the asserted harm of granting specific exemptions to particular religious claimants.”Footnote ⁶¹ Courts used to consider the cumulative effects of compliance with federal law, not the benefits of a specific entity’s compliance with law. Now, states must prove a compelling interest in “denying an exception” to the individual objector.Footnote ⁶² In other words, courts no longer evaluate the compelling interest in protecting health at the population level, but rather must look to the interest at the individual or employer level.

A string of cases decided during the height of the COVID-19 pandemic indicates that the existence of a single exception from a law may render a governmental interest less than compelling. When it sided with objectors against a public health measure limiting gathering size in Tandon v. Newsom, the Court held that regulations are not generally applicable “whenever they treat any comparable secular activity more favorably than religious exercise,” even when they treat other secular activity less favorably.Footnote ⁶³ The same analysis that finds a law not generally applicable leads to the conclusion that the state has not treated its interest in the law as compelling. For example, in Fulton v. City of Philadelphia, the Supreme Court held that the existence of exceptions — even exceptions that had never been granted — fundamentally undermined the contention that the state’s interest was compelling.Footnote ⁶⁴ Where the state excepts any secular actors, its interest in enforcement against a religious believer wanes.Footnote ⁶⁵ Lower courts have taken this doctrine to condemn any preference for “life-sustaining” over “soul-sustaining” exemptions.Footnote ⁶⁶ Even the interest of pandemic containment yielded to religion. Cumulative effects of exemptions are discounted; instead, the Court requires the risks to be assessed case by case.

Third, the least-restrictive-means standard has become “exceptionally demanding.”Footnote ⁶⁷ The existence of potentially large numbers of objectors no longer suffices to reject religious objections out of hand. Instead, the Supreme Court has repeatedly said, “[a]t bottom, this argument is but another formulation of the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions.’”Footnote ⁶⁸ Significantly, plaintiffs have advanced, and several courts endorsed, public funding as an alternative to regulating and involving employers in public health efforts.Footnote ⁶⁹ In Hobby Lobby, the Court suggested the “most straightforward” approach to contraceptive coverage would be for the government to assume the costs.Footnote ⁷⁰ Contrary to the public-private bargain of the ACA, courts would require the government to implement politically and practically infeasible public programs specific to objected-to services.Footnote ⁷¹ Instead of the ACA’s promise of near-universal availability of evidence-based preventive care to protect the public’s health, gaps in coverage emerge.

B. Rejecting Public Health Obligations in Braidwood Management, Inc. v. Becerra

Braidwood shows how this individualistic approach rejects private obligations toward public health. In this case, the plaintiff-owners of for-profit firms believe that PrEP “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”Footnote ⁷² Requiring them to cover PrEP in their employee benefit plans, they argue, substantially burdens their religious exercise by making them complicit in acts they believe to be morally wrong.Footnote ⁷³ Their argument effectively shifts from the ACA’s public-oriented collective response to health to “a victim-blaming mentality,” whereby people vulnerable to HIV bear responsibility for that risk.Footnote ⁷⁴ In response, the government argued that the businesses’ ability to carry their burden depended on the (questionable) factual accuracy of their assertion that PrEP facilitates such sexual behavior. The district court rejected this response as “inappropriate”; the firms’ religious beliefs had to be accepted and “honored.”Footnote ⁷⁵

Mandating PrEP through employer-based insurance then failed the compelling interest analysis. While the government might have a compelling interest in preventing the spread of infectious disease, this framing, the court held, was too broad where religion claims were involved. Instead, it looked at the government’s interest in requiring PrEP coverage from the specific business and similarly situated “private, religious corporations.”Footnote ⁷⁶ Purported secular exemptions to the preventive services mandate — in the form of grandfathered plans and the application of the ACA only to large businesses — fatally undermined the compelling interest.Footnote ⁷⁷ The court thus concluded, “[d]efendants outline a generalized policy to combat the spread of HIV, but they provide no evidence connecting that policy to employers such as Braidwood, nor do they provide evidence distinguishing potential religious exemptions from existing secular exemptions.”Footnote ⁷⁸

Taken literally, this individualistic inquiry would require the government to justify any law with regard to each employer (or group of employers). And the enforcement of a law against any single employer — let alone any individual — will rarely rise to the level of a compelling interest. Preserving the health of tens of millions of people is compelling, but the need to safeguard enrollees in any particular employer’s health plan is less weighty. Constricting the scope of compelling interests thus effectively limits “the authority of the state to regulate economic life.”Footnote ⁷⁹

As Braidwood also highlights, the new doctrinal emphasis on secular exemptions is potentially all-encompassing. Few laws (for the protection of public health or otherwise) apply universally. They often have a restricted scope, for example applying only to manufacturing facilities or large employers. They may contain mechanisms to ease the rollout of compliance, such as grandfathering. Or they may include exceptions justified by other interests, like medical exemptions from immunization requirements. Under this new doctrine, courts may label any of these characteristics of lawmaking “secular exemptions.” The result is that the compelling interest disappears and the objector succeeds.

The Braidwood court also went on to decide that employer-based coverage of PrEP is not the least restrictive means to further public health. Litigants had argued that the government could require all non-objecting health care providers to deliver PrEP drugs free of charge and then could reimburse them.Footnote ⁸⁰ The court agreed: the government could assume the cost for any employees who sought PrEP.Footnote ⁸¹

Although the Braidwood district court judge is a notorious opponent of the ACA, his opinion is not unique in treating the employer role in insurance as an unjustified burden.Footnote ⁸² The Supreme Court’s radical revision of free exercise doctrine has invited courts across the country to disregard the compromise inherent in the ACA.Footnote ⁸³ This compromise preserved the interests of employers in keeping control over group plans while setting a minimum baseline for the benefit of their employees and public health. Decisions in favor of religious exemption instead portray the public-private system as disruptive of private actors. On this analysis, the failure to pursue a public system means the government has no authority to regulate the workplace.

C. Impact Beyond Sexual and Reproductive Health

Thus far, religious objections from employers have centered on reproductive and sexual health. But their logic extends well beyond contraception and STI prevention. Consider that the Braidwood plaintiffs’ initial complaint objected to covering PrEP and preventive services for hepatitis B and C based in part on their moral opposition to drug use.Footnote ⁸⁴ From there, objections could easily be expanded to include treatment for substance use disorders and associated conditions. This Section explains the potential for exemptions from coverage of vaccination and mental health services.

Childhood and adult vaccines are obvious targets. The preventive services mandate ensures comprehensive access to vaccinations recommended by ACIP.Footnote ⁸⁵ Just a decade ago, the Supreme Court could breezily dismiss the idea of granting religious exemptions related to vaccination as implausible. It exempted for-profit employers from covering contraception but insisted that “[o]ther coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.”Footnote ⁸⁶ Planning of pregnancy (and the attendant benefits to maternal and infant health) might be distinguished from preventing the spread of disease.

Today, however, a rising tide of religious exemption claims has overtaken vaccine mandates. The courts have begun to accept religious challenges that they previously would have summarily rejected.Footnote ⁸⁷ On an individualized inquiry, the aggregation of the public’s interest in avoiding disease exposure is largely overlooked. Lower courts have granted religious exemptions on the ground that medical exceptions — for people whose health is endangered by vaccination — equally undermine the state’s goals.Footnote ⁸⁸ Although the Supreme Court has not gone so far, Justices Gorsuch, Alito, and Thomas would constitutionalize religious exemptions to immunization.Footnote ⁸⁹

The same reasoning that has led the lower courts to grant individual religious exemptions from COVID-19 vaccination mandates could also extend to religious employers who object to financing vaccination through employee benefit plans. Religious objectors assert a range of reasons for their opposition to vaccination. One frequently cited concern is that some vaccines have been developed using fetal cell lines.Footnote ⁹⁰ It is easy to imagine an employer arguing that including such vaccinations in its benefit plan would make it complicit in immoral activity.

With regard to immunization, a high-level perspective on the governmental interest is essential. The herd immunity required to stem outbreaks demands high levels of uptake. This threshold varies depending on the pathogen, the vaccine, and the characteristics of the population. For example, measles, an extremely contagious disease, requires a 95 percent vaccination rate to keep outbreaks from getting out of hand.Footnote ⁹¹ The individualized inquiry — to the objecting business — seems to neglect consideration of the aggregate.

Mental health benefits could also be susceptible to religious objection. The preventive services mandate encompasses coverage of depression screening, anxiety screening, and child behavioral and developmental assessments.Footnote ⁹² Federal law also requires a measure of mental health parity, prohibiting plans from imposing limits on mental health or substance use disorder benefits that are less favorable than limits imposed on medical benefits.Footnote ⁹³ Many states have enacted more thorough-going parity laws that require plans to include mental health benefits.Footnote ⁹⁴

While religious people hold a broad spectrum of beliefs about mental illness, common beliefs within conservative Christianity associate mental illness with sin, character flaw, or insufficient faith.Footnote ⁹⁵ A study by Marcia Webb and her colleagues into best-selling Christian self-help books illuminates. These enormously popular texts ascribe depression to an attack by Satan or to individual failure to act as good Christians.Footnote ⁹⁶ They emphasize personal responsibility for mental health issues.Footnote ⁹⁷ One author lectured that “[i]f you are depressed you have to understand that nobody is making you depressed … You are choosing to remain in that condition.”Footnote ⁹⁸ It follows that “a spiritual problem requires a spiritual solution.”Footnote ⁹⁹ In a Lifeway Research Survey, nearly half of evangelical Christians agreed that “[w]ith just Bible study and prayer, ALONE, people with serious mental illness like depression, bipolar disorder, and schizophrenia could overcome mental illness.”Footnote ¹⁰⁰ On this view, the appropriate response to mental illness is religious observance,Footnote ¹⁰¹ not collective support through insurance coverage.

Such religious objections — and exemptions — are far more plausible than they might initially seem. Religious resistance to substance use disorder treatment and mental health coverage is already reflected in health care sharing ministries, which are exempted from the ACA’s regulations.Footnote ¹⁰² For their members, ministries substitute for insurance and routinely exclude mental health services just as they do reproductive and sexual health care.Footnote ¹⁰³ Consistent with the approach in Braidwood, Hobby Lobby, and other recent exemption cases, these services too could be subject to employer exemption.

A. From Liberty of Contract to First Amendment Lochnerism

The Lochner era of the twentieth century draws its name from Lochner v. New York, a decision that epitomized judicial resistance to the protection of labor and public health.Footnote ¹⁰⁷ There, the Court leveraged the right of contract of employers and workers to invalidate a restriction on bakers’ hours that the state argued was needed to safeguard health. The 60-hour workweek provision targeted in the case was situated within a comprehensive regulatory regime specifying standards for ventilation and cleanliness.Footnote ¹⁰⁸ As Matthew Bewig explains, “[t]he bakers’ agitation for the underlying Bakeshop Act focused heavily on public health issues, particularly on the contention that bakery work created an unacceptable risk of disease, especially consumption [now known as tuberculosis], to themselves and to consumers.”Footnote ¹⁰⁹

Positioning themselves as the defenders of freedom against tyranny, the justices in the Lochner majority substituted their own assessment of public health evidence for that of the legislature. The majority disregarded population-level harms altogether — stating that “[t]he law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker.”Footnote ¹¹⁰ And it ultimately struck down the law based on “the common understanding [that] the trade of a baker has never been regarded as an unhealthy one.”Footnote ¹¹¹ In the years that followed, regulations protecting occupational health and safety were frequent targets of litigation.Footnote ¹¹²

Following the Court’s rejection of Lochner in 1937,Footnote ¹¹³ legislatures and executive officials reclaimed their principal role in identifying and advancing collective interests in health and welfare. Businesses’ assertions of free exercise of religion did not interfere with these efforts. Prior to Hobby Lobby, courts rejected claims from employers for exemption under the First Amendment (and sometimes RFRA) from an array of statutes regulating health and labor standards.Footnote ¹¹⁴ Notably, the highest courts of New York and California had rebuffed a challenge to state contraceptive mandates from religious non-profit employers.Footnote ¹¹⁵

But — as has been well documented in scholarly literature and occasionally noted in judicial decisions — the Supreme Court is now reinventing Lochner under the First Amendment.Footnote ¹¹⁶ The risks to public health from free speech have been amply explored,Footnote ¹¹⁷ but free exercise claims from business merit greater attention from public health policymakers, researchers, and advocates. As one of us has previously written, courts have incorporated the central premises of Lochner into religious liberty doctrine.Footnote ¹¹⁸ They adopt a “stringent judicial review of economic regulation informed by a baseline of private ordering and a skepticism toward redistribution.”Footnote ¹¹⁹ Under this approach, regulation is suspect as an unfair imposition — or substantial burden — on the liberty of the business. The government loses its power to alter market conditions via regulation of private enterprise. As we saw in Braidwood, it must advance its interests, whether in public health or equality, through fully public programs — or not at all.

B. Implications of Free Exercise Lochnerism for Public Health

Like freedom of contract before it, this reinterpretation of religious liberty renders vulnerable the regulation of industry in the interest of public health.Footnote ¹²⁰ Religious liberty arguments used to be distinguished from other constitutional claims by their result: an individual plaintiff secures exemption but the law otherwise remains intact.Footnote ¹²¹ However, these corporations are not the minority individuals of past accommodations; they are politically powerful institutions and commercial entities — the very centerpiece of regulatory efforts. The exemption of any single objector more significantly undermines governmental goals.

It is important to note that some religious plaintiffs are no longer satisfied with exemption and seek market-wide injunctions. Some of the plaintiffs in the Braidwood case won a permanent injunction in a previous case which barred the government from enforcing the contraceptive mandate against them.Footnote ¹²² But insurers nonetheless did not offer them contraceptive-free policies, finding it “financially unappealing” to design a special plan for these small employers.Footnote ¹²³ So, they claimed, the very existence of the mandate constituted injury.Footnote ¹²⁴ The trial court agreed. The plaintiffs suffered injury so long as enforcement existed anywhere in the market; after all, “the Contraceptive Mandate is not called the Contraceptive Suggestion.”Footnote ¹²⁵ Without a mandate, it was plausible that “the insurance market would return to its pre-ACA conditions.”Footnote ¹²⁶ Although the court ultimately decided the plaintiffs’ request for a blanket injunction was barred by res judicata, its favorable disposition indicates the potential reach of RFRA claims into public health.Footnote ¹²⁷

Even where plaintiffs do not make such ambitious requests, the effect of litigation may be to remake the market according to their morals and, in so doing, undermine the public’s health and their employees’ access to health care. For example, the Hobby Lobby decision involved only three plaintiffs, but the Supreme Court’s holding necessarily prompted administrative action extending to any closely held corporation with a religious objection. And in 2018, the Trump Administration finalized a distinctly deregulatory rule with a broad “moral” exemption available to for-profit employers.Footnote ¹²⁸ These administrative efforts too can be considered part of free exercise Lochnerism.Footnote ¹²⁹

Finally, one should not overlook the overlap between religious liberty claims of conservative Christians and libertarian arguments of industry. As Joanna Wuest and Briana Last have meticulously documented, the same industry groups that funded attacks on the constitutionality of the ACA’s individual mandate also provide generous support to legal organizations now representing religious business interests.Footnote ¹³⁰ This coalition of corporate and religious interests exploits the “entwining of the public-private administration and provision of healthcare in the U.S.” to erode public health programs.Footnote ¹³¹

The purported sincerity and religiosity of plaintiffs grant them a degree of deference that, in turn, permits them to escalate attacks on the regulation of health and labor. As Wuest and Last note, religious objectors’ “challenges to the ACA’s constitutionality have consistently featured a blend of religious liberty appeals and anti-administrativism.”Footnote ¹³² Industry-funded Christian litigation shops supported the efforts against the COVID-19 vaccination-or-testing rule — which resulted, notably, in a Supreme Court shadow docket ruling in favor of the National Federation of Independent Businesses.Footnote ¹³³ Braidwood is an exemplar of this phenomenon. In addition to their RFRA claims, plaintiffs challenge the preventive services mandate in its entirety as unconstitutionally relying on advisory bodies for recommended services. And the district court granted summary judgment in their favor on their Appointments Clause claim with respect to the USPSTF — throwing into jeopardy access to an even larger number of preventive services.Footnote ¹³⁴

As with liberty of contract a century ago and free speech today, free exercise doctrine increasingly has become the tool of industry against labor and public health. The shrinking of compelling interests denies the cumulative harm of religious exemption and the importance of collective effort to provide large but diffuse benefits. These decisions disrupt the public-private tradeoffs of the ACA and use concessions to employers against the government. Courts hostile to preventive services — from contraception to PrEP — make the calculus that if we must have a public program for prevention or nothing at all, we will get nothing at all.