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.

Tuesday, October 30, 2012

Gedicks on religious freedom and the HHS mandate

Michael Perry links here to my friend Fred Gedicks's "Policy Brief", done for the American Constitution Society, on the HHS mandate.  I think the world of Fred and his work, but his policy brief misses the mark in a number of important respects.  (I wonder if Michael agrees with Fred's arguments?)

Obviously, the paper is intended to be a "policy brief", and so there's no reason to expect it to deal comprehensively with the matters covered.  But, Fred is too quick to conclude -- indeed, he is wrong to conclude -- that the mandate does not impose a substantial burden on the religious exercise of at least some religious employers who are currently subject to the mandate.  And, he is wrong in asserting that requiring these employers to provide the coverage in question is, within the meaning of RFRA, the least restrictive means of achieving the government's interest.  And, he is wrong (though this is obviously a "deeper" question) in his assertion / assumption that "access to contraception" -- when "access" means "provision at someone else's expense", as opposed to "legal access" -- is a "fundamental" right or liberty. 

What's more, it is a mistake to contend, as Fred does, that a religious employer seeking to exercise its religious-freedom right not to provide the coverage in question is burdening the religious liberty of employees who (i) desire the coverage and (ii) have no moral or religious objection to contraception or sterilization.

I have elaborated on these points in various places, and won't impose them on readers again.  But, I do regret being on the other side -- the correct side, in this case, but still the other side -- from Fred on this one.



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Geddicks makes another fundamental mistake when he says "access to contraceptives is also fundamental. Such access, moreover, is a critical component of the well-being and advancement of women, enabling them to time and space their pregnancies, thereby enhancing their own health (and that of their new-born children) and facilitating their participation in the workforce on more equal terms with men." There is no evidence that women are having trouble getting contraceptives due to cost. With the proliferation of Title X clinics as well as the low cost of generic contraceptives, women can obtain contraception for the cost of two Starbucks lattes per month. As a physician I can tell you that no professional medical association claims that contraception is essential to women's health. Their use is a wholly elective lifestyle choice for women who want to be sexually active and avoid pregnancy and who have weighed the extensive side effects of contraception and choose to use them anyway. As a woman, I can tell you that is extremely insulting and demeaning to say that unless I make myself physiologically like a man, I cannot succeed in America. On the contrary, I know numerous successful women who have managed to keep their fertility intact. Womanhood is not a malformation. Fertility is not a disorder. Pregnancy is not a disease. I have discussed this further here. http://www.truthandcharityforum.org/obamas-equality-and-liberty-for-women/

Posted by: Denise Hunnell, MD | Oct 30, 2012 12:35:51 PM

Dr.Hunnell, It is no wonder that HHS's understanding of contraception, can be so misconstrued. According to J.Matt Barber, one need only search http://www.hhs.gov/
and enter Kinsey, to find out who they believe defines the personal and relational essence of the human person, leaving God out of the equation.

Posted by: N.D. | Oct 30, 2012 1:19:40 PM

OK, I'll bite. A search of the site reveals one cite to Alfred Kinsey. That cite is in presentation materials for a conference in which HHS was involved. The presentation was by a private firm. The site and materials begin with this statement: "Presenters' references to these materials do not constitute endorsement by the Office of Adolescent Health or U.S. Department of Health and Human Services. Any statements expressed are those of the presenters and do not necessarily reflect the views of the Department." Whatever else one may think of the mandate, this is not exactly a smoking gun.

Posted by: Paul Horwitz | Oct 30, 2012 1:37:57 PM

In one of the most central parts of his paper, Gedicks makes a very serious factual error. To argue that the mandate causes no "substantial" burden, he asserts the following about Lee:

"United States v. Lee, 455 U.S. 252 (1982) (mandatory payment of social security and unemployment insurance taxes did not burden employer whose Amish tenets prohibited payment for or acceptance of government benefits)"

This is a direct contradiction of what the Court held, namely, that the payment of taxes DID burden the employer; that it did so to a sufficient extent to meet the plaintiff's showing and put the government to pass the scrutiny level the court considered applicable; and it was a burden despite a similar argument by the government. at 257. The Court rejected that argument because courts have no business doing what Gedicks does: parse people's theological objections into levels of proximity (use of contraception, facilitation of it, subsidy, etc), and claim the government burden is too remote to be sufficient. See also Thomas v Review Board 450 U.S. at 715 (the believer, not the government, gets to decide what activities are "sufficiently insulated" from the source of evil he objects to facilitating: "Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs"). Nor is this mandate a tax. It isn't a tax. It's not. It is an order to buy objectionable coverage for private citizens, not give money to the government's general fund a part of which will be spent objectionably. So the tax cases aren't even applicable--something more is needed, Gedicks (and the ACLU and DOJ) have failed to supply it.

Gedicks declares that "Access to contraceptives is also a fundamental constitutional liberty," citing only Baird and Griswold, neither of which redefine the right to contraception or abortion as being "access" that includes forcing private citizens (or even the government) to fund and facilitate other people's sexual choices. "[A] woman’s right to an abortion or to contraception does not compel a private person or entity to facilitate either." Planned Parenthood Arizona, Inc. v. American Ass'n of Pro-Life Obstetricians & Gynecologists, 227 Ariz. 262, 277 (2011)

Gedicks declares that health and equality are "compelling interests" and quickly moves on, but the Supreme Court has repeated many times that strict scrutiny does not allow generic assertions of government interests, it requires the government to prove it has a compelling interest to coerce this particular plaintiff. O Centro Espirita, 546 U.S. at 430–32; see also Lukumi, 508 U.S. at 546; Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000). It also has to demonstrate compelling "evidence" for that interest, causal not correlative evidence, and show that the mandate on this plaintiff is necessary to solve an "actual problem," and show that the mandate on this plaintiff is not merely a marginal advancement of its interests. Brown, 131 S. Ct. at 2739. And there is no such thing as a "compelling interest" when "it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi, 508 U.S. at 520. Exempting 2/3 of the nation in grandfathered plans proves that the government doesn't even remotely believe "women's health and equality" from this Mandate are compelling intersets. The government is content to leave women without "equality" in most large employer plans.

And the Supreme Court in Riley v. National Federation of the Blind, along with scholars like Doug Laycock, have demonstrated that less restrictive alternatives cause a claim to fail strict scrutiny even if those alternatives would impose costs on the government. 487 U.S. at 799-800; 73 Tex. L. Rev. at 224.

Argument citations like the above from Gedicks are sloppy. Despite the paper being a "brief," I don't think that's an excuse for advancing basic errors. I guess I was assuming an article like this, especially one cited at MOJ, would contibute to the knowledge base about this issue instead of simply repeating ideological rhetoric in a way that is not even as competent as the Department of Justice's legal assertions. Law review-style footnoting, it seems to me, can all too easily devolve into proof-texting, to citing any old source as if it demonstrates the point, and at its worst, to citing sources that do not even assert the point alleged.

Posted by: Matt Bowman | Oct 30, 2012 1:44:24 PM

Professor Horwitz, with all due respect to those who use disclaimers, to use a disclaimer to make it appear as if you are not endorsing certain information on a Government site, while posting information on a Government site which includes that information you claim not to be endorsing, is merely an example of doublespeak.

Posted by: N.D. | Oct 30, 2012 2:29:57 PM

I think it is extremely generous to conclude that Geddicks is simply "mistaken" in making all of these assertions that depart from sound legal and moral reasoning.

If he was simply making a bunch of random errors, we'd expect some of them to come out on the other side of the issue. Instead all of the "mistakes" seem to be mysteriously necessary building blocks of only one side of a deeply contentious issue. It beggars belief to think that this is all just the result of misunderstandings and sloppy reasoning.

It seems more likely that he's intentionally mis-stating the law, mis-characterizing arguments on the other side and omitting relevant information for a very obvious purpose. We owe Michael Perry a debt of gratitude for calling this to our attention a week before the election, so we can point out the obvious "errors."

Posted by: sally rogers | Oct 30, 2012 2:42:50 PM

I feel complimented that Fr. Araujo and Rick Garnett felt my issue brief worthy of response (even if the response is, like Rick's, "wrong, wrong, wrong, wrong, wrong"--at least he spelled my name right). I've never met Fr. Araujo, but an article of his was helpful to me many years ago, when I was a young law professor struggling to master the Religion Clauses. Rick is both a personal friend and a challenging conversation partner on these issues. I hope to have brief responses to both up shortly on the ACS blog, Hurricane Sandy willing.

Matt Bowman (who did not spell my name right) takes me to task for "sloppiness." Readers may judge for themselves, but having just reread both my issue brief and United States v. Lee, I would suggest to him that the brief quite clearly uses Lee to argue that the mandate is not a statutorily cognizable burden under RFRA, and not to argue, as he contends, that anti-mandate employers do not experience the mandate as an interference with their religious liberty. Similarly, the issue he accuses me of ignoring, whether the government has a compelling interest in applying the mandate to "these" objecting religious employers, is discussed as an "alternative means" at pp. 18-19 of the brief.

Finally, a general response to comments like Ms Rogers's. The legality of the mandate and the general stakes of religious liberty in contemporary society are important to folks of widely differing views. One can always learn from civil conversation with one's opponents, who can and should point out errors in one's reasoning and citations. Such conversations, more importantly, may yet uncover some common ground or mutually acceptable compromise on the mandate. None of these things are likely to happen, however, if one is unwilling to admit the basic good faith of those on the other side.

Posted by: Frederick Gedicks | Oct 30, 2012 3:32:23 PM

Mr. Gedicks, if your name is not spelled Gedicks you should not sign it Gedicks. Your paper makes the false assertion that under US v. Lee, the government requirement "did not burden employer", in a part of your paper arguing that RFRA claims fail because the mandate does not constitute a substantial burden. US v Lee specifically rejects the argument, and discusses that rejection at some length, that the requirement "did not burden employer." The court said that because the plaintiff showed a sufficient burden of free exercise of religion under the First Amendment, the SCRUTINY level had to be applied to it. It matters not to this point that the court said the burden was justified under the scrutiny level. Your paper argues that a court assessing a RFRA claim of the mandate should not even apply strict scrutiny because the plaintiff has not met his burden showing. Your summary of Lee to support that idea, saying that Lee ruled the requirement "did not burden employer" is a plain error. A scholar would not let such an error remain unchanged after it is identified. Or, it might be that you don't know the difference between declaring that a requirement is no substantial burden and declaring that it doesn't pass the scrutiny level; and that you don't know a compelling interest must be tailored to the plaintiff with compelling evidence independent of the additional, second requirement that the method used be the least restrictive means of achieving such a proved-up interest.

Posted by: Matt Bowman | Oct 30, 2012 3:47:20 PM

But if Mr. Gedicks is not even willing to admit error in his own SSRN publication, I would not expect him to admit he falsely accused me of spelling his name wrong in order to misdirect readers from his own sloppiness.

Posted by: Matt Bowman | Oct 30, 2012 3:51:05 PM

Matt, I agree with you about what Lee says, and about what RFRA means for the mandate. That said, your last two sentences, in your 3:47:20 comment, are unhelpful and, in my view, inappropriate. Fred is an accomplished scholar (although he is, again, flat-out-wrong on this issue).

Posted by: Rick Garnett | Oct 30, 2012 3:51:50 PM

Sally -- Your concern that Prof. Gedicks is "more likely . . . intentionally mis-stating the law, mis-characterizing arguments on the other side and omitting relevant information for a very obvious purpose" is not warranted, and the charge is, I think, not fair. While I am sure that there are people -- activists, politicians, lawyers, and even scholars -- who *are* doing those things in order to defend the HHS mandate, Prof. Gedicks's record is one careful attention to the importance of religious freedom. My view is that the mandate clearly violates the RFRA (and is unjust in any event) and that those who are committed to religious freedom and limited government (as I believe Prof. Gedicks and I are) should oppose it for this and other reasons. If Prof. Gedicks says otherwise, it is because he thinks otherwise.

Posted by: Rick Garnett | Oct 30, 2012 4:04:15 PM

Mr. Gedicks - point well taken. I will assume your good faith.

I simply find it extremely difficult to understand how an intelligent person can believe that the government has any interest whatsoever in forcing one private party against their religious convictions to provide another private party with insurance for no-copay contraception, and that this is then characterized as necessary for protecting the "religious liberty" of the recipient. It makes no sense. The fact that these arguments are asserted over and over again in the face of obvious objections does tend to make one question the bona fides of those making the assertion.

Religious liberty in the US is a negative right against the government, not a positive right to free stuff paid for by another private party. That one could assert otherwise is perplexing. It's as if we have no common starting point, and no agreed vocabulary. This also makes discussion among contending parties difficult.

Posted by: sally rogers | Oct 30, 2012 4:13:30 PM

There is no inherent right to contraception because contraception, which is not Life affirming or Life sustaining, is not Good for the posterity or the prosperity of this Nation or the World: http://www.janetsmith.excerptsofinri.com/

Posted by: N.D. | Oct 30, 2012 4:32:15 PM

My apologies to Mr. Bowman; I mistook a misspelling of my name in another comment as having been in his. As always, the brief pay-off of snarky humor is rarely worth the long run cost.

Thank you to Ms. Rogers. While we may not have a common starting point, it is helpful to define how our starting points differ. Much on this issue depends on whether one views liberty "negatively," as you do, or "positively," as I do, at least on some issues. Those supporting positive liberty view affirmative government action in a complex society as essential to the enjoyment of meaningful liberty--that is, the mere absence of government not enough. This basic disagreement about whether liberty is positive or negative defines many of the differences between the two political parties (although they sometimes switch places on negative/positive liberty, depending on the issue).

The mandate is an example of positive liberty in this sense. Freedom to purchase contraceptives--the absence of government obstacles guaranteed by Griswold and Eisenstadt--is of less value to women who cannot afford to purchase them, or cannot afford to purchase the ones that work best for them. It seeks to give women--especially low income women--greater control over their lives and a more equal footing with men in the workplace than would exist in the mere absence of government obstacles to purchasing contraception.

Posted by: Frederick Gedicks | Oct 30, 2012 4:33:55 PM

Of all the "positive rights" one could dream up in the world, how odd that the first one we impose on an objecting religious person is the "right" to contraception. Why not the right to good food, decent housing, good books, peaceful neighborhoods, or any other wonderful things that would give us "greater control over" our lives and a "more equal footing" with those who have access to such things.

Posted by: sally rogers | Oct 30, 2012 4:39:50 PM

Thank you Mr. Gedicks. Regarding Rick's comment, I did (do) honestly wonder whether you were approaching RFRA/free ex as if the elements of those claims condense into each other. Lee very clearly and specifically says the plaintiff has met his free ex burden showing, and the scrutiny analysis must be assessed. There is an obvious burden why the government and the mandate's defenders don't want to concede that point: because strict scrutiny is, actually, strict. So I get it that you want to argue no substantial burden exists. But to say Lee held the requirement did not burden employer, to support that point, is not debatable--it is an error of fact. Lee didn't just hold the opposite, it explained its holding, that the burden was met so the scrutiny level had to be applied. If you want to put a "but see" on Lee and argue it was wrong, that there was no sufficient burden on the employer, that would be one thing. I can see why mandate defenders would not want to admit, while they are arguing no substantial burden exists for taxes, that the Supreme Court held taxes are a substantial burden. Or if you want to just cite Lee saying it shows the scrutiny level is met--then you would be wrong, since RFRA applies a different, higher scrutiny, and the Mandate here is not a tax--but at least you wouldn't be making an error of fact. You give evidence of having read O'Brien, which specifically pointed out that if no sub burden has been shown, the analysis is over--no scrutiny need be applied. So it is simply not possible to say that RFRA plaintiffs haven't shown a sub burden since Lee held the requirement did not burden employer. Lee declared it was reaching exactly the opposite conclusion.

Posted by: Matt Bowman | Oct 30, 2012 4:45:16 PM

In what area, other than abortion and contraception, has anyone even claimed that "access" includes subsidy? I have yet to see the government sending out free porn, or "F the draft" jackets, or flags and matches. In fact, I thought that Finley and Rust and other cases stood for the fact that you can say what you want, but not on the federal dime.

If, instead, access does now include funding, is there a reason abortion is different, or does that mean overruling Harris v. McRae for a right to free abortion, at least for some? Similarly, is there any reason that the HHS mandate could not, constitutionally, extend to abortions, other than executive discretion (until January 21)?

Posted by: another cynic | Oct 30, 2012 4:45:31 PM

One would think a positive Right is one that is Life affirming and Life sustaining, to begin with.

Posted by: N.D. | Oct 30, 2012 4:49:28 PM

See the evolutionary charactistics of positive rights in this discussion. First, in Mr. Gedicks' paper he cites Baird and Griswold as if they contain a right to "access" by which he means government compulsion that private citizens help. Then here he admits they contain only the absence of government obstacles. Thus he is adding to even Baird and Griswold. What legal precedent serves as the basis for someone to claim that Baird, Griswold, Roe, etc. not only prevent government obstacles but require private citizen participation? Well, no case precedent. Its source is insted the scholarly concept of positive v. negative rights. There's no case saying, the Griswold-Roe right includes coercion of fellow citizens to facilitate. And the Supreme Court has said it doesn't even require government funding. But since the scholarly perspective *imagines* that rights = coercive access, then *they do*. So when they assert in a position paper or a speech (as the ACLU did in a recent debate at Rutgers), that the constitution guarantees a right to coercive access, *see Griswold*, they don't even concede they are making a misstatement of law. It seems to me that a more, I am sorry but I can think of no other appropriate word, honest approach would admit up front that constitutionally recognized reproductive rights are *not* rights to "access" coercing private citizens to facilitate, but we think they should be.

Posted by: Matt Bowman | Oct 30, 2012 5:00:20 PM

Since there is no inherent right to free contraception, it is only logical to assume that one cannot be forced, as Father Jenkins has stated, to have to choose between being a contraception provider or going without Health Insurance.

Posted by: N.D. | Oct 30, 2012 6:29:09 PM

Even stranger than the claim that _the Government_ must fund our access to alleged "positive rights" is the claim that the government can mandate that _private citizens_ must do so. It's as if the government mandated that private employers must issue "liberty vouchers" that an employee could use to subsidize access to anything the government claims is "fundamental" to liberty and equality.

So yes, why not require employers to subsidize pornography for those who can't afford it (or can't afford the kind they like best)? I'm sure we'll have many experts explain the "health" benefits of masturbation, and why porn is necessary for optimal physical and mental health. It will help people better control their lives and put single people on an even footing with those who have partners. No one should be denied access to sexual choices. Porn is a part of free speech which is a fundamental right.

Thus employers should subsidize it, and religious employers should not impose the costs of their disapproval of porn on those who disagree. Such negative externalities of their peculiar religious views are clearly unjust and not protected by Religious Liberty claims. Q.E.D.

Posted by: slats grobnik | Oct 30, 2012 7:43:32 PM

The parallels between these cases are compelling. I've heard that 99% of those whose religion disapproves of porn use it anyway. And, tragically, some college boys have had to choose between their porn habit and tuition payments. The humanity!

Posted by: cry me a river | Oct 30, 2012 8:40:55 PM

I've heard that the sexual objectification of the human person, is, in fact, a form of slavery

Posted by: N.D. | Oct 31, 2012 10:19:03 AM

Professor Garnett, perhaps this book will help your friend, Fred, come over to the correct side of the debate:


Posted by: N.D. | Oct 31, 2012 11:01:56 AM

"access includes subsidy?"

Health care access is thought to include a subsidy for those unable to pay for it. The "access" at issue here is not just for abortion [btw, since many states provide Medicaid coverage to abortion in limited cases that violate religious dictates of some faiths, is it a violation of religious liberty to generally require Medicaid deductions?] or contraceptives. There are other health related activities that might violate some religious belief.

If some janitor at a hospital run by a Catholic institution can be denied health care in this area, she can be in some other area. If the religion that runs the institution opposes psychiatric drugs, e.g., she can be denied them under her health plan.

Posted by: Joe | Nov 1, 2012 12:07:06 AM

Mr. Gedicks' response, posted by Michael Perry, is this:

"The question is whether the contraception mandate is closer to mandated wage or salary compensation that the employee can spend as he or she chooses without employer restrictions, or a mandated contraceptive voucher which would constitute an unambiguous employer subsidy. While the benefit created by the contraception mandate is not identical to wages or salary, it is close: Mandated contraceptives constitute a benefit made available to employees through their employer health insurance plan; health insurance benefits are a form of employee compensation which, like wages and salary, employees may consume in a variety of ways as they wish, free of employer restriction. Allowing an employer to interfere in this consumption decision on the basis of the employer’s religious anti-contraception beliefs would impose the burden of those beliefs on many employees who do not share them; thereby violating the latter’s religious and general personal liberty."

This response from Mr. Gedicks is not particularly compelling because it mischaracterizes what is going on: it is not employers that are infringing on the religious liberties of their employees, it is the government that is imposing a burden on the religious liberty of religious employers and institutions. What Mr. Gedicks seems to forget is that employees were free and still are free to buy contraception or get sterilized with the money paid to them by their employers. Employers are not trying to interfere with the existing rights of their employees to make those decisions, and employers are not asking for the right to violate the religious freedom of their employees. Employers are simply asking to be free from government coercion that requires them to facilitate the supply and delivery of products and services they deem to be immoral.

As Mr. Gedicks suggests, employers should be free to pay cash to employees and let employees buy contraception, or guns, or pornography, or other items that the employer finds morally objectionable. But the HHS mandate and Obamacare now prevents employers from exercising that right and letting employees make their own moral decisions - that's the problem. If an employer compensates an employee in the form of cash (without providing health insurance), the employer (in many cases) is now subject to a government-imposed penalty. If the employer chooses to compensate employees through health insurance coverage, the government now mandates that the employer pay for contraception, abortifacients, sterilization, etc., which the employer finds morally repugnant. It is the government that has taken away the freedom of employers to choose the form (and content) of the compensation they pay to their employees, and it is the government acting with coercive force to undermine the religious liberty of the employer.

If Mr. Gedicks is really concerned about the religious freedom of employees, he should oppose the mandate and Obamacare. Without Obamacare, employers could pay all employees in cash and let them decide how to use the money without interference from the government or their employer (something Mr. Gedicks seems to think is morally acceptable for all parties, and infringes no one's religious liberty). Under Obamacare, this option is no longer available. Moreover, Obamacare and the mandate will force many employees to participate in and pay their own money into plans that include products and services they find morally objectionable. If employees who want contraception have a right to "access" contraception through their employer plans, why don't employees who think contraception is immoral have a right to "access" employer plans that do not provide it and do not require them to fund its use by others? If Mr. Gedicks really wants employees to protect the religious liberty of employees, let's protect it for all of them. To do so, Mr. Gedicks will have to admit that it is government interference in the marketplace that is burdening religious liberty, not employers who are just trying to pay compensation in a way they find just and fair.

Posted by: BMoney | Nov 1, 2012 11:17:32 AM

A federal judge in Michigan has enjoined the implementation of the mandate against a private employer: http://www.michigan.gov/ag/0,4534,7-164-46849-289342--,00.html

Posted by: Catholic Law Student | Nov 1, 2012 1:04:45 PM

Opinion Here: http://www.thomasmore.org/sites/default/files/files/Weingartz%20-%20Legatus%20Opinion%20103112.pdf

Posted by: Catholic Law Student | Nov 1, 2012 1:06:27 PM


I recently discovered this blog, and to me it is amazing. Certainly, a purposeful rendering of these laws without God in the equation is the central issue. What to do in the face of such blatant disregard for our foundational and legal history is always what interests me the most. On that note, I was hoping to make a personal request: I am 44 years old, and I would love to study the law in order to help defend the 1st Amendment. Does anyone here think it is a crazy idea to embark on such a journey at my age? Also, does anyone here have any suggestions on how to best pursue this dream if I currently live in the Washington, DC area?

Posted by: Scott Mosel | Nov 1, 2012 4:21:59 PM

There are plenty of law schools in your area. Professor Mark Rienzi is one of the lead litigators for the Becket Fund. He teaches at Catholic University. CUA also has an excellent evening program.

There is a handful of students your age at my law school. So, it is not an impossible dream.

BUT!! The legal market is not what it was in days past.

Posted by: Catholic Law Student | Nov 1, 2012 8:00:03 PM