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, July 30, 2013

Walsh on the Third Circuit's Contraception Mandate Decision

Mirror of Justice friend and University of Richmond law professor Kevin Walsh has a thoughtful and informative post about the Third Circuit's recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin's post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of "exercise" was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin's post:

Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays. 

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.


DeGirolami, Marc | Permalink


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I realize this is a bit off-topic, but I wonder if the Church isn't missing an opportunity. Is there a reason that we are not simply insisting that insurance companies pay for NFP training? Insurers regularly pay for other licensed or certified allied health providers/trainers. There is more empirical support for NFP than for practically the entire profession of Chiropractics and insurance pays for them, and lactation consultants, art therapists, etc. Why not licensed and certified NFP Instructors?

In 2007, the University if Heidelberg found NFP to be as effective as the Pill (see below) and that's just one study I know of off hand. With the empirical data behind it, there is no clinical reason why NFP shouldn't qualify except for the fact that the establishment is biased against it and no one for the Church is pushing this option. Why not?

I'm not being hyperbolic. I'm honestly asking if this could be an arguable solution. If so, how? If not, why not?

I'm sure that I'm missing something, but it just seems to me that we should interpret the mandate to mean that we are obliged to pay for "Family Planning" and then insist that the gov't support NFP training. Make THEM prove NFP ISN'T effective. Either way, the press would be terrific and it would nice to put the other side on the defense (and expose them for their anti-science bias) for a change


Posted by: Greg Popcak | Jul 30, 2013 4:36:44 PM

Hi Greg! In the abstract, I think your point is a good one. There are a couple of practical problems. First, the premise of this whole situation is that we are talking about the category of "preventive services" for women. Preventive of what? The government has mandated abortifacients, contraception and sterilization based on the idea that pregnancy is an expensive, dangerous and autonomously chosen disease. Asking that natural fertility awareness / NFP be counted among preventive services requires, to people of good will at least, a satisfactory explanation of what actual disease it is preventing. The second problem is, who would one ask? Obamacare authorizes all these decisions to be made by bureaucrats, and in this case it lets bureaucrats select an even further removed from accountability group of "experts" to entirely decide what counts as preventive services. The experts, as you can imagine, were pro-abortion and Planned Parenthood ideologues. That group spent lots of your taxpayer money in 2011 to come up with a "report" recommending what we have today. This is how progressivism functions. I suspect that some of the good folks on our side who attended their sessions did in fact ask for NFP to be included. Unsurprisingly, the group of social planners that decided to coerce the church did not feel so generous, or from their perspective, insane, as to provide mandated NFP coverage in health insurance. Neither of these problems are insurmountable in theory, so I think it could be interesting if a campaign existed to include NFP among preventive services. As a matter of litigation, I am not aware of how to make this change--it would have to be done through politics and bureaucracy. That's why "we" in the sense of the litigation has not made this an issue. The futility of achieving this result through Sebelius and Planned Parenthood's "experts" might be an obstacle to building an actual NFP-inclusion campaign.

Posted by: Matt Bowman | Jul 31, 2013 8:56:31 AM

"pregnancy is an expensive, dangerous and autonomously chosen disease"

It is expensive, it can be dangerous (it has various negative consequences) and it is at times "autonomously" chosen. Other times, and the requirement set up here pursuant to an independent health study on preventive care doesn't suggest different, it is not "chosen" at all. As to the "disease" part, it has various negative consequences that are dis-ease to the body. Not sure exactly though what "disease" connotates in the second comment though.

"decisions to be made by bureaucrats"

The decision here ultimately is made by individuals who -- thanks to PPACA -- have a greater ability to make health choices based on their own religious beliefs and needs. This promotes individual religious liberty. It being part of employment regulation, bureaucrats factor in. Private health care also would involve bureaucrats making various decisions.

"The experts, as you can imagine, were pro-abortion and Planned Parenthood ideologues."

I have no actual clear evidence that the people who determined the preventive health value of specific things, not limited to the ones listed here, are all "pro-abortion and Planned Parenthood ideologues." Planned Parenthood, including the right to stay pregnant even if society thinks it a bad idea or you cannot pay on your own, so you need insurance that is paid via employment based health care here, is not a negative thing to some though.

"This is how progressivism functions."

Scientific based study guides majority health policy that helps individuals make health choices based on their health needs and individual religious and moral beliefs? Yes, that is how progressives roll.

"decided to coerce the church"

Or, someone who sells cabinets or hobby supplies. "Coerce" here means following regular general employment regulations in the public sector, including allowing people to use their own money to pay for health insurance so they can -- as they do with the rest of their compensation -- use it as they see fit, including as their moral and religious needs warrant.


The 3CA reflects the idea that the 1A is at its core based on the natural right of an individual to exercise religion. Corporations are artificial persons, privileges granted by the state. Unlike Ms. Sherbert, a "corporation" does not have a natural right to exercise religion.

The corporation is a means used, yes, but it one granted by the state. Unlike the freedom of speech, where the USSC repeatedly recognized corporations have free speech rights, the 3CA noted individuals have free exercise rights in precedent. MOJ cited William Baude earlier. He noted the undeveloped nature of the law in this area. Telling point. The 3CA did not want to activist style go ahead of the law. If the USSC wants to do so, it has the power to do so.

Posted by: Joe | Aug 5, 2013 12:29:41 AM

"Corporations are artificial persons."

All persons exist in relationship. A corporation is composed of persons, existing in relationship. There is no such thing as an "artificial" person.

Posted by: Nancy | Aug 6, 2013 9:21:59 AM

Oops! Sorry, Professor Degirolami.

Posted by: Nancy | Aug 6, 2013 9:29:36 AM

"Corporations are artificial persons."

Persons exist in relationship. Corporations are composed of real human persons who exist in Time and Space and are subject to Time and Space; they move, they grow, and they respond to their environment.

Posted by: Nancy | Aug 6, 2013 10:06:50 AM