Monday, October 1, 2012
Forcing a church to pay for its employees' abortions would not create a substantial burden on religious exercise. Discuss.
On Friday, a federal district court in Missouri dismissed in its entirety one of the contraceptive mandate lawsuits, this one brought by Frank O'Brien and O'Brien Industries against HHS. It is not surprising (to me, anyway) that the free exercise and establishment clause claims were dismissed, as I've never thought those were particularly strong. I am surprised, though, that the RFRA claim was dismissed under 12(b)(6) for failure to state a claim upon which relief can be granted, as the court categorically rejected the notion "that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff's religious exercise."
A few points worth noting:
First, in this case, the court was faced with the original and most egregious version of the HHS regulations. Because O'Brien Industries is a for-profit entity, the plaintiffs (the company and its owner) are not entitled to any of the current or promised exemptions.
Second, the court's analysis did not turn on the for-profit status ("[T]his Court declines to reach the question of whether a secular limited liability company is capable of exercising a religion within the meaning of RFRA or the First Amendment."), which means that the court's reasoning would apply equally to Catholic Charities, Belmont Abbey College, or the Diocese of Rockville Centre if those entities were forced to pay for contraceptives or abortifacients in their employee health plans.
Third, the court's reasoning disregarded institutional identity as bearing any relevance to the substantial burden analysis. The court asserted that "plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [O'Brien Industries's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion."
Fourth, the court mistakenly conflated free exercise as positive liberty with free exercise as negative liberty. The court emphasized that "RFRA does not protect against the slight burden on religious exercise that arises where one's money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one's own." In other words, forcing an employer to pay for X does not burden his religious exercise any more than failing to ensure the availability of X would burden the employee's religious exercise.
Fifth, the court quickly dismissed the argument that the huge number of current exemptions precludes a finding that the mandate is generally applicable for purposes of free exercise analysis under Employment Division v. Smith. ("The exemptions, for grandfathered plans, religious employers, and non-profits under the safe harbor do not undermine the general applicability of the regulations within the meaning of Free Exercise Clause jurisprudence.")
Sixth, the court accepts the equivalency (for "substantial burden" purposes) of paying salaries and paying for particular services under a health plan. ("Already, [plaintiffs] pay salaries to their employees -- money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimis impact on the plaintiff's religious beliefs than paying salaries and other benefits to employees.") This misses the scandal that is created by more direct complicity with the illicit ends. If a Belmont Abbey College employee were to bring the invoice from an abortion provider to work and demand that her employer pay it, is that really the same as using salary to pay the abortion provider? For purposes of determining whether a government requirement amounts to a substantial burden on the employer's religious exercise, apparently it is.
Finally, if this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees' abortions without creating a substantial burden on religious exercise for purposes of RFRA, and that issue would be so straightforward that it could be handled on a 12(b)(6) motion.