A Perfect Storm: Religion, Sex, and Administrative Law

(Excerpt) In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United States. Part II will set forth the controversies, first, surrounding the Trump administration’s SRA grants, and second, concerning the Obama administration’s contraception mandate. It will describe each agency action, and the partisan fabric of each administration’s HHS. Then, it will highlight each administration’s claim to possessing high-quality expertise on the subject matter at issue, and conclude with a description of the religious controversy that each agency action provoked. Part III will critique the scientific arguments HHS deployed to support SRA funding and the contraceptive mandate. It will also identify the factors in both actions which give rise to establishment and free exercise challenges respectively, and suggest ways in which both HHS and religious actors might incrementally improve sexual and reproductive health policy while avoiding wasteful and unnecessary clashes with religion.