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53 U. Louisville L. Rev. 467 (2015)
Narrow Tailoring, Compelling Interests, and Free Exercise: On ACA, RFRA and Predictability
Mark Strasser*
Abstract
      Last term, the United States Supreme Court decided Burwell v. Hobby Lobby Stores, Inc.,1 an anxiously awaited opinion involving a challenge to a provision of the Affordable Care Act.2 The holding was narrow in scope3— closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage.4 In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees.5 Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential.6 However, because the opinion changes the focus and standards of federal law and will likely result in a flood of litigation, Hobby Lobby’s import should not be underestimated.
* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.