Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

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.    


Vischer, Rob | Permalink

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Rob, I agree with your take on this case. I also agree that the opinion is, as an interpretation of precedent, a mess. My comments are here: http://clrforum.org/2012/09/30/some-comments-about-the-district-court-decision-dismissing-the-mandate-claim/

As a side note, I will never understand why people believe that the political party of the nominating president of a district court judge helps to explain, or justify, or legitimate, the decisions that the district judge reaches. Maybe there is some remote connection when one is talking about very recent appointments, though the connection would probably be far stronger at the appellate or Supreme Court level. But when one is dealing with an appointment of a district court judge which occurred multiple decades ago, I think this is simply a distraction. So the frequent observations in the media and elsewhere about this connection -- whichever way it goes -- are largely if not totally irrelevant.

Posted by: Marc DeGirolami | Oct 1, 2012 11:22:34 AM

Does the opinion actually support the idea that a religious organization could be forced to pay for an itemized and specific abortion or contraceptive pill? Because there's an important, if subtle, difference between requiring someone to pay for insurance that covers X and *might* be used for X as opposed to directly paying for each occurrence of X. In the latter case, the amount the organization is paying is directly tied to the increasing prevalence of X. In the former, that relationship is much more diffuse and indirect.

Posted by: Andrew MacKie-Mason | Oct 1, 2012 11:48:51 AM

Andrew: No, it doesn't. My point there was just to highlight limits of the court's reasoning -- i.e., that paying salary is the same as covering particular services. If the employer's objection invariably boils down to not wanting to facilitate illicit conduct, without regard to the form of that facilitation, then paying the itemized invoice is the logical end point, in my view. The court did not explicitly embrace that end point, though.

Posted by: rob vischer | Oct 1, 2012 12:06:45 PM

Alright. Thanks for the clarification.

Posted by: Andrew MacKie-Mason | Oct 1, 2012 1:21:00 PM

A self-insuring entity does indeed pay those invoices.

And United States v Lee itself says the (for-profit) employer MET his free ex showing, and therefore the applicable scrutiny level had to be applied. 455 U. S. at 257. So its ironic that Lee is the favorite case people use to argue against these RFRA claims, when the idea that there's no substantial burden is directly contradicted by Lee.

Posted by: Matt Bowman | Oct 1, 2012 1:27:13 PM

"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?"

I've never heard of an employee bringing a medical invoice to their employer and demanding the invoice be paid by the employer. The only exception would be in the case of employers that are self-insured. So, is that our only basis for argument, that self-insured employers be exempt because the employer would, in fact, be paying directly for the immoral procedure?

Posted by: Deacon Sean Smith | Oct 1, 2012 4:15:25 PM

Though the court didn't address what this says about the sincerity of the plaintiff's belief or how significantly it would be burdened, I think it is noteworthy that this is yet another plaintiff who was providing insurance with contraceptive coverage until a recent realization that he was violating his religious belief by doing so.

Posted by: Bridgette | Oct 1, 2012 5:09:29 PM

"yet another" as in, there are a bunch who haven't

Posted by: Matt Bowman | Oct 1, 2012 5:36:00 PM

Certainly. How is that relevant in assessing the claims of plaintiffs like Mr. O'Brien who have provided contraceptive coverage but now claim continuing to do so would substantially burden their sincere religious beliefs?

Posted by: Bridgette | Oct 1, 2012 6:12:24 PM


From where do you ascertain that the plaintiff used to provide contraceptive coverage through his company's insurance plan? As a former employee of his company, I was given to understand that he went to great lengths in selecting health plans that *didn't* offer coverage for these services and for that I admire him.

Posted by: Anne | Oct 1, 2012 9:49:51 PM


She probably got that idea from the decision and the company's pleadings. It provides contraception coverage now, it has for awhile, and it doesn't want to because doing something the President supports is against his religion.

Posted by: Anne2a | Oct 1, 2012 10:05:24 PM

I hate slippery slope arguments - but apparently not enough to avoid posing one.

Consider, for example, the employer who is a Scientologist. Most of his employees are Christians and Jews. New York law requires health insurance carriers to cover prescriptions and some level of psychiatric care.

Both psychiatric care and antidepressants are anathema to Scientologists. If business owner is devout, should he be able to obtain an exemption from the state? Where would you draw the line? Isn't this employer imposing his religious beliefs on others?

At some point it would be possible for just about any organization to obtain some sort of religious exemption if these were not confined to religious organizations that overwhelmingly employ members of their own faith.

By the way, contraception coverage, the same as the ACA, has been law in New York for a number of years. Not a peep out of Dolan. Now, however, the USCCB has decided to manufacture this "religious liberty" meme. Let's just say that Cardinal Dolan has "issues."

Posted by: David | Oct 1, 2012 11:48:27 PM


The court explains on page five of the decision that the plan is not grandfathered because it currently includes contraceptive coverage. The Obama administration has altered the criteria for the one year "safe harbor" period in which the religious accomodation will be finalized to excuse religiously-affiliated institutions from compliance despite their having offered contraceptive coverage in the past. Secular for-profit companies like Mr. O'Brien's are not eligible for the safe harbor.


That doesn't seem to me to be a slippery slope but an application of the proposed principle to a religion other than Catholicism. Jehovah's Witnesses have taken their belief proscribing blood transfusions to the Supreme Court. Should an affiliated corporation or a secular one whose owner is an adherent be able to exclude blood transfusions from insurance coverage? I have seen this question raised a number of times but not answered by any opponent of the HHS regs. Presumably, some opponents will say an employer should be able to exclude any kind of coverage, but this is an anti-regulation argument not a religious freedom claim.

Posted by: Bridgette | Oct 2, 2012 7:45:07 AM

Nothing shows respect for religious freedom better than a government that prohibits repentance and conversion. Especially if they select an arbitrary date before which conversion is permissible, after which it is not.

Posted by: Matt Bowman | Oct 2, 2012 9:17:20 AM


The Catholic dioceses of New York fought the state level contraception mandates at the time they were initially issued. This was way before Dolan arrived in NY. In a highly dubious opinion, the Court of Appeals of New York upheld the requirement against a 1st Amendment challenge. In a nutshell, the court held that an unenumerated right--women's equality--trumps the enumerated First Amendment right.

RE Scientologists et al.,

The situation in the United States whereby employers are responsible for employee healthcare is an accident of history. It began during WWII when the government placed caps on the salaries employers cold pay worker. To get around the cap, employers started paying employers non-monetary compensation via things lake healthcare. The government then encouraged this by granting large tax deductions to employers who pay healthcare to employees.

If the government is serious that employers should have no say in what sort of healthcare their employees receive, then Congress should restructure the tax code so that individual employees rather than employers are incentivized to buy healthcare. Give the individual the tax incentive rather than the employee and keep total cost of compensation to the employer steady. (This would help ameliorate a number of other problems in the health care market place as well).

Congress and the President shouldn't be able to use a tax structure that they created as the basis for saying that employers should be forced to pay for services for their employees that violate their consciences.

Posted by: Catholic Law Student | Oct 2, 2012 9:53:13 AM

David, obviously our Founding Fathers would not have protected our inherent Right to Religious Liberty if they did not believe Religious Liberty should serve to complement and thus enhance the value of The State. So the question is, how can any State or religion make the claim that the use of contraception, which promotes promiscuity and the sexual objectification of the human person, and in some cases, destroys the life of a human being, serves for the common Good?

Posted by: N.D. | Oct 2, 2012 10:04:58 AM

Let's just say that Cardinal Dolan was not the only one who had been sleeping in Gethsemane.

Posted by: N.D. | Oct 2, 2012 10:08:20 AM

CLS you are right, but it's worse than that. Suppose the government said health insurance must include things objected to by Scientologists or others, EXCEPT for an arbitrarily defined group of religious entities, EXCEPT for certain sects, and EXCEPT for 191 million people in plans the government just doesn't think are important enough to have be subject to requirement. Would the government be able to claim that even IT believes a compelling interest exists to force these things into people's plans, when it voluntarily lets 2/3 of the nation out of that same alleged interest, for a hodgepodge of reasons? Of course not.

Now suppose you lived in a country where the federal government required NO ONE to include things objected to by JWs or whoever. Would that society collapse under the chaos and injustice of the situation? Would there be rampant exclusions of blood transfusions from health insurance? The answer to that question is simple. Until August 2012, there was NO federal obstacle to excluding these things. SO WHERE ARE ALL THE PLANS EXCLUDING BLOOD TRANSFUSIONS UNTIL AUGUST 2012? We've lived in the exact regime that the abortifacient mandate planintiffs want, that is supposed to cause a parade of horribles, for the entire existence of this Republic minus two months. Where are the horribles? I want to watch the parade.

Posted by: Matt Bowman | Oct 2, 2012 10:43:03 AM

NB: In fact, since blood transfusions are not preventive services, we STILL have no federal mandate of the hypothticals that RFRA is supposed to unleash. Where are all the outrageous religious fanatic plans that Obamacare will save us from and that RFRA will subject us to?

Posted by: Matt Bowman | Oct 2, 2012 10:46:35 AM


All correct. I am simply pointing out that the supposed problem that the government is trying to correct--i.e. religious employers not providing "necessary" medical care--is a problem of the government's own creation.

Posted by: Catholic Law Student | Oct 2, 2012 11:13:52 AM

Concur--and now the government is making that problem worse, since under Obamacare large employers now MUST provide health insurance--it's not merely incentivized anymore.

Posted by: Matt Bowman | Oct 2, 2012 11:39:23 AM


I'll again refer to page five of the decision. There was no repentance and conversion, the company "inadvertently included" contraceptive services. Mr. O'Brien is claiming something he didn't even notice constitutes a substantial burden, as are a number of other plaintiffs.

Catholic Law Student,

Perhaps you believe the opinion in Catholic Charities of Albany v. Serio is dubious because you misremember or misunderstand the case. Your nutshell description that "the court held that an unenumerated right--women's equality--trumps the enumerated First Amendment right" is entirely incorrect. The court held that the birth control mandate did not violate the Federal constitution based on the Supreme Court's ruling in Smith that a generally applicable neutral law that incidentally burdens religious exercise does not violate the First Amendment. The Smith analysis isn't about interest balancing so I have no idea where you got your women's equality trumped the first amendment interpretation.

The NY Court declined to apply the "inflexible" Smith rule in interpreting the NY constitution, however, instead using a test more protective of religious freedom to hold that the law also did not violate the NY free exercise clause. The First Amendment analysis was the same in the CA case, both were appealed, and the Supreme Court denied cert. You may not like Smith (I don't) but what is dubious about the NY decision? (As an aside, your characterization of women's equality as an unenumerated right suggests you need a more recent copy of the constitution--yours seems to be missing some amendments).

Also, that we could have a different non-employer based system for providing insurance than we do today is not a response to the issue of other demands for religious based exemptions from insurance regulations in our existing system.

Posted by: Bridgette | Oct 2, 2012 12:07:19 PM

Not even the judge in this case agreed with you on this point. Motions to dismiss cannot resolve facts against plaintiffs.

Posted by: Matt Bowman | Oct 2, 2012 12:58:48 PM


The difference in the NY state case You posit is the fact, at the time, Your hypothetical Employer would have had a "way out" by switching to a Self-insured plan under ERISA and become exempt from the state requirements. In this case, however, no "way out" exists.

Posted by: Brian P. Rabbit | Oct 2, 2012 1:10:49 PM

And you are simply imposing your own version of the government's no conversion rule. Inadvertent was either "I have a sincere belief but made a mistake," or it was what you say, "something he didn't even notice" in an insincere way. But even if the latter is the case, NOW he does notice, and now it is sincere. And you are saying, THAT repentence and conversion is impermissible. Religous freedom!

Posted by: Matt Bowman | Oct 2, 2012 1:25:50 PM

Brian P. Rabbit,

You say: " In this case, however, no 'way out' exists."

For organizations who couldn't afford to self-insure, that "way out" was irrelevant. But it is just not true that with ACA there is no way out. Organizations can stop providing health insurance and pay the fine (or tax, or whatever you want to call it). Indeed, a persistent criticism of Obamacare is that it creates financial incentives for employers to stop providing medical coverage and let employees buy it themselves (and, of course, receive subsidies to help them afford it).

Posted by: David Nickol | Oct 2, 2012 1:49:44 PM

Correct, the judge did not make a finding of fact as to the inadvertence of the coverage, that is what the plaintiff plead. The plaintiff did not make any assertion that his desire to change his current plan resulted from "repentance and conversion."

Posted by: Bridgette | Oct 2, 2012 2:17:34 PM

By definition, repentence is a change. The complaint pleads existing religious beliefs against coverage in furtherance of CHANGING. So either the inadvertent coverage was a mistake, or it is against his religious beliefs now. If you insist on interpreting the complaint against the plaintiff by excluding the first possibility (improper on a 12(b)(6) motion), then you are prohibiting him from holding a sincere religious belief against it now. You propose a ban on repentence, IF repentence is against birth control. In your Amerika, people are only free to convert in favor of birth control.

Posted by: Matt Bowman | Oct 2, 2012 2:26:11 PM

"can stop providing health insurance and pay the fine"

A governent fine is DN's definition of freedom

Posted by: Matt Bowman | Oct 2, 2012 2:31:15 PM

"Amerika", Mr. Bowman? I'm glad your rhetoric isn't getting the best of you today. I also never realized you were a Ice Cube fan. Who would have guessed?

Posted by: Ed Dougherty | Oct 2, 2012 2:35:57 PM

"Pro-Choice" = The government will coerce everyone to pay for private citizens' abortion and birth control. There's a reality check for you, Mr. Dougherty.

Posted by: Matt Bowman | Oct 2, 2012 2:37:29 PM

And I don't like being made to pay for those items, Mr. Bowman. Just as I didn't like paying for a war in Iraq that was against my religious beliefs. But I didn't accuse any of the proponets of belonging to the Klan. That would include Dr. Dobson, who actually said that the Iraq War was prophetized in the Book of Ecclesiastes.

Posted by: Ed Dougherty | Oct 2, 2012 3:11:22 PM

"A governent fine is DN's definition of freedom"

Matt Bowman:

What I said was that if self-insuring was a "way out" of state mandates to provide contraception coverage, then dropping insurance and paying the tax/fine is a "way out" of the federal mandate. I don't remember defining freedom.


As conservatives were so fond of saying back in the 1960s, "America—love it or leave it." Also, "My country, right or wrong." But many conservatives now hate American (or, pardon me, Amerika), or so it seems to me.

Posted by: David Nickol | Oct 2, 2012 3:30:00 PM

I am wondering on what basis can The State claim it can give preferential treatment to an Insurance Company if it provides contraception?

Posted by: N.D. | Oct 2, 2012 4:45:20 PM

Or to a company.

Posted by: N.D. | Oct 2, 2012 4:57:26 PM

"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. "

In fact, Rob, the Obama administration is arguing in this case--and the judge agreed, in her section on the APA--that nothing in PPACA or federal law stops the government from requiring ANY health plan to cover abortion, as long as that plan is not an "exchange" plan.

Posted by: Matt Bowman | Oct 3, 2012 8:55:27 AM

Two things of general interest.

One, the argument that the exceptions make it not a matter of general application should blow up in someone's face. The government tried to provide some room for religious exemptions to balance various interests and in return this is seen as damning on 1A grounds. The nerve of the government! Fine. Take away the exemptions. Will that make people happy? There seems to be some missing the forest for the trees here. One can be lost in logic sometimes.

Two, I wonder about paying into Medicaid and Medicare in this context. Do religious colleges find it acceptable to pay into such programs? After all, there are exceptions (that some religious find objectionable) to the Hyde Amendment in the abortion context. In fact, various states (even fairly conservative ones) have exemptions that go beyond rape, health, life of the woman. Not that all religions find even a rape exemption allowable.

Query why this is not some major threat to religious freedom? As to funding abortion, the ultimate person who pays for this is the employee. It is her money. The denial of free exercise rights for the some janitor at a religious college continues to be appealing to some people. What other things can she or he be told to use the money for?

It is religious favoritism to make "abortion" (which some apply even to morning after pills, which act like regular birth control pills often do) some special rule here. Why should something many religions allow and accept as moral be the sine qua non here? I realize some are horrified by it, but others, again including many religions, are not, especially when the morning after pill is involved (which some in this fight cite as "abortion"). Other religions find other acts deeply immoral.

So, janitors or whatnot at religious colleges or affiliated hospitals? Check with your institution's religious authorities to determine what sort of medical procedures are acceptable to use your salary to pay for. It might be against God's will to, e.g., get that extra pain medication, since there is a small chance it will be lethal. If destruction of fertilized egg that occurs with regular use of birth control is a problem, it's abortion after all, any number of things can be.

Or, should we have religious favoritism in this country? The question is rhetorical. We do. And, some support it.

Posted by: Joe | Oct 3, 2012 9:03:40 AM

Also, one comment says that the best approach is totally re-jigger health care so it is individually based, not the 'by accident of history' approach of focusing on employers. That's quite conceivable, but before this "perfect" solution is in place, we are left with the imperfect. This is how things generally are. It took a perfect storm to manage the improvement of health coverage that we obtained.

Finally, someone noted that there is an "out" here and the rejoinder is that this isn't really "freedom." The sarcasm is something of a cheap shot. The important matter of health coverage is at issue here & an evenhanded approach as to religion would open up a lot more than abortion as a reason to deny coverage. So, there are a lot of things to balance. First, we are told that the exceptions allowed in fact, psych!, make the regime faulty. Second, we are told that possible alternatives -- trivial as compared to what others have to do to faithfully follow what they believe are God's dictates -- results in some sort of tyranny.

I continue to find this a misguided fight, for many reasons. The average Catholic, I daresay, is likely to agree. "Religious freedom" is a core liberty. I simply don't see it here except that the employee is being denied it.

Posted by: Joe | Oct 3, 2012 9:14:55 AM

What makes this regime fauty for a Nation that professes to be one Nation, under God, with Liberty and Justice for all, is the failure to recognize, from the beginning, that with Love, comes responsibility.

Posted by: N.D. | Oct 3, 2012 12:33:06 PM