Thursday, February 6, 2014
Rick has already posted about the Linda Greenhouse op-ed on McCullen v. Coakley (the pending free speech challenge to Massachusetts special speech restrictions around abortion clinics) and Little Sisters of the Poor v. Sebelius (the RFRA/First Amendment/APA challenge to the contraceptives coverage requirements for nonexempt religious nonprofits). In thinking about these cases, Greenhouse discerns "sustained aggressiveness by religious groups that sense weakness in the executive branch and welcoming arms at the Roberts court." I tend to see more aggressiveness in the government actions being challenged--the state shutting down free speech and the Obama Administration forcing religious sisters to violate their religious conscience--than in the attempts by Eleanor McCullen and the Little Sisters of the Poor to defend themselves legally. But these are matters of opinion about which people differ. There are a couple of misleading claims in the op-ed, though, about which people should not differ and which I hope Greenhouse or the New York Times will clarify or correct.
The first misleading claim is factual. It is the answer to this seemingly simple question: How many pages is the form that a nonexempt religious nonprofit must sign to be eligible for the accommodated mode of complying with the contraceptives coverage mandate? Greenhouse says it is a "standard one-page form." But if the piece had included a link to the form itself, interested readers would have discovered that it is a two-page form. And if Greenhouse had looked at the second page of the form, she would have seen language that a nonexempt religious employer with objections to the mandate would find problematic. Consider, for instance, the language stating that "[t]his certification is an instrument under which the plan is operated." That language ensures that any contraceptives coverage arranged by the third-party administrator is part of the benefits package offered through the nonexempt employer's health benefits plan. Making the coverage part of that plan is one aspect of the government's scheme to provide comprehensive contraceptives coverage for employees of nonexempt employers. Greenhouse also would have seen reference to the obligations imposed by various federal regulations upon third-party administrators who receive executed copies of the government's form. These regulations obligate the recipient third-party administrator to arrange for coverage of all-FDA approved contraceptives. Greenhouse does not address these aspects of the form in her piece. The most charitable reading of her characterization of the form may be that she was thinking that employers would print out and submit the two-page form using the double-side setting on their printers. But that is not the most natural reading, and the piece is misleading as written.
The second misleading claim is legal rather than factual. This is Greenhouse's claim that the form at issue "sets the exemption machinery in motion." The form has nothing to do with the exemption from the contraceptives coverage mandate. "Religious employers" who are actually "exempt" do not need to fill out this form. The form at issue in Little Sisters of the Poor v. Sebelius is part of the machinery for the government's arrangement for nonexempt religious nonprofits.
Both of these should be non-controversial points. But they are not trivial. To miss the second page of the form is to miss legally operative language that causes the "accommodation" to be significantly different from (and in some ways the opposite of) an "exemption." And to describe as an "exemption" the path that applies only to nonexempt religious nonprofits is to get a key legal feature wrong.