Wednesday, December 18, 2013
There has, in recent days, been a lot of very thoughtful blogging and close analysis of the HHS-mandate cases and the issues they raise. (Eugene Volokh's impressive series of posts -- contained in one document here; Marty Lederman's posts at Balkinization; Micah Schwartzman's, Rich Schragger's, and Nelson Tebbe's posts at the same place; and of course our own Marc DeGirolami's recent contributions. And many more!)
I've also blogged and op-ed-ed (more than) my fair share on the issue over the last two years. I still think that what I wrote, just over two years ago, in this USA Today piece is (mutatis mutandis) right, though I was thinking more of religious employers and less of commercial employers like the ones involved in the cases now before the Court.
As I (still) see it, the mandate -- and also the "accommodation" -- substantially and unnecessarily burdens the religious exercise of at least some employers / institutions. And, I am not moved by the argument (pressed by Nelson Tebbe, Fred Gedicks and others) that it would constitute an "establishment" of religion to add objecting religious employers to the group of employers who are already not subject to the contraception coverage mandate and to provide the coverage and services in question to those employers' employees via another mechanism.
But, I want here to raise a not-particularly-technical or doctrinal question that has been on my own mind as I think about the cases: Let’s put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation. Let’s put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance.
Let’s say we’ve decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits. We know that some employers – not many, but some; primarily religiously affiliated, but not all – will have religion-based objections to providing coverage that includes these services to their employees. Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors?
Perhaps no such alternative mechanism or route – one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible. Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible. We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage. But, again, I assume such an alternative could have been designed. (If I’m wrong about this, then the objecting employers are, it seems to me, in a weaker position.)
Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind: We might think that accommodating these employers would undermine certain public commitments or shared values that should not be undermined, or that accommodating them would “express” something (an endorsement of patriarchal or outdated views regarding sexuality, perhaps) that we don’t want the government to express. I don’t think that accommodating objecting employers would do either of these things, but maybe some of us disagree. If we saw the objecting employers as aligned with interests and aims that we find repugnant, we might not want to accommodate them just because, well, they are on the side of things we find repugnant.
Or, maybe, we would decline – even if we could go back in time and re-draft – to accommodate objecting employers because we think religious objections to generally applicable laws should not be singled out for solicitude unless such singling out is somehow required by the Constitution. Or, maybe we think that, categorically, commercial (or non-house-of-worship) employers do not and cannot “exercise religion” so cannot be burdened in ways that call for accommodation.
Again, I don’t mean here to engage the important and interesting analysis that others are developing and sharing regarding the RFRA claims or Establishment Clause case law. I also mean to put aside questions one might have about the wisdom of the policy judgment that the law should require all of the services in question to be included in employees' health-care plans or in plans offered through the exchanges. I'm thinking, now, more in terms of “how should our political community handle what appears to be the tension between our desire to secure and provide a certain benefit and the religion-based concerns of some to a particular mechanism for providing and securing that benefit?” If an accommodation (that does not impose burdens on the employees of objecting employers and that does not give an unfair windfall to those employers) was, and remains, feasible, then why *shouldn’t* we provide it?
Over at First Things (here) George Weigel has a beautiful tribue to Chicago's Cardinal-Archbishop, Francis Eugene George, on the occasion of the 50th anniversary of George's ordination to the priesthood. I have had the opportunity to work with Cardinal George on a number of occasions. His broad knowledge and keen intellect make him an astute observer of matters both cultural and ecclesiastical. Whenever he speaks I always find myself learning something new, or seeing something I have thought about in a new way. More importantly, however, he is a disciple of Christ who tries to bring others to the love and mercy of the Risen Lord. As Weigel puts it:
"He may well be the most intellectually sophisticated bishop in U.S. Catholic history; he certainly has shown keen insight into the sources of America’s current crisis of public culture. Yet as he marks the 50th anniversary of the day when he became a priest of the Church, an icon of the eternal priesthood of Christ, it is as a brother in Christ whose faith-based Christian courage gives courage to others that I wish to salute him."
December 18, 2013 | Permalink
In response to my post on the Eastern District of New York's decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the "church plan" issue, I'd welcome it, as it has been insufficiently considered.
As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection. It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”....This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage....Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.
In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.
The impact of this revelation was on grand display in the EDNY case.
Tuesday, December 17, 2013
. . . In fact, no modern president comes close to Mr. Obama in meting out mercy so rarely and so stingily.
In his first term in office, Ronald Reagan signed 250 pardons for federal inmates; George H.W. Bush authorized 77 and Bill Clinton, 56. Mr. Obama granted just 23. (Including more granted this spring, his total is now up to 39.) . . .
To be clear: President George H.W. Bush should have granted more, too -- as should most governors -- and I have thought this for a long time. But, I would have thought that this stinginess would be a matter of serious and widespread regret to those who supported (as I did not) the President during his campaigns and who were moved by his campaign appears, themes, and rhetoric. What's more, the President has shown himself not only willing to use, but enthusiastic about using, his executive power in order to achieve substantive outcomes that he thinks Congress is unable or unwilling to deliver. Why not here?
I'm delighted to share the news that my friend and colleague, Prof. Dan Philpott, has been appointed to serve as the director of Notre Dame's Center for Civil and Human Rights. MOJ readers are likely familiar with Philpott's work and writing, including his (excellent) co-authored book, God's Century: Resurgent Religion and Global Politics. (I also strongly recommend an earlier book of his, Revolutions in Sovereignty.)
Further to Rick's post below, I've gone through the decision and highlighted some of what seem to me the important features:
The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the "accommodation" offered by government. Other plaintiffs are Diocesan--the lead plaintiff is the Roman Catholic Archdiocese of New York--and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs' claims were dismissed.
The remainder of this post will focus on the non-exempted but "accommodated" plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government's "accommodation" is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post, and I hope others will chime in on this particular point).
In granting the plaintiffs' motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a "substantial pressure" standard to evaluate whether plaintiffs suffered a "substantial burden": "Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs." The court held that the self-certification requirement imposed by the "accommodation" on non-exempted non-profits was a substantial burden and rejected the government's proposed test that a court should evaluate whether the burden was "de minimis" or should evaluate whether the self-certification is "too attenuated" to constitute a substantial burden.
The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered "the promotion of public health, and ensuring that women have equal access to health-care services" as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government's claim that granting exemptions to these plaintiffs would undermine the government's ability to administer its regulation so as to achieve its aims uniformly.
Critically, it distinguished United States v. Lee--a case rejecting an Amish plaintiff's request for exemption from paying taxes into Social Security--on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government's application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government's own exemptions.
Here is the key language from the decision:
Monday, December 16, 2013
A federal-district-court ruling that grants an injunction against enforcing the mandate against a number of Catholic Church-affiliated institutional employers is available here. I am still reviewing it, but it looks to be a very good result for religious-but-not-exempt employers' bringing RFRA challenges to the mandate.
Here is one noteworthy quote:
The Government has not made a similar showing of a compelling interest in uniform enforcement of the Mandate, for the simple reason that enforcement of the Mandate is currently anything but uniform. Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and “religious employers” like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.
Here is another:
“The Government’s “it’s just a form” argument suffers from the same infirmity. The non-exempt plaintiffs are required to complete and submit the self-certification, which authorizes a third-party to provide the contraceptive coverage to which they object. They consider this to be an endorsement of such coverage; to them, the self-certification “compel[s] affirmation of a repugnant belief.” Sherbert, 374 U.S. at 402. It is not for this Court to say otherwise.”
And a third:
The Government feels that the accommodation sufficiently insulates plaintiffs from the objectionable services, but plaintiffs disagree. Again, it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs. See Thomas, 450 U.S. at 715 (“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.”); Hobby Lobby, 723 F.3d at 1142 (“[T]he question here is not whether the reasonable observer would consider the plaintiffs complicit in an immoral act, but rather how the plaintiffs themselves measure their degree of complicity.”); Korte, 735 F.3d at 685 (rejecting similar “attenuation” argument, because “[n]o civil authority can decide” the question of whether “providing this coverage impermissibly assist[s] the commission of a wrongful act in violation of the moral doctrines of the Catholic Church”).
Prof. Marci Hamilton (Cardozo) has an op-ed up at Justia called "The Bishops Versus Women's Health: The Gloves Are Off." The piece is about, among other things, the Hobby Lobby and Conestoga Wood cases involving RFRA challenges to the HHS contraception-coverage mandate and the ACLU's lawsuit recently filed in Michigan, Means v. USCCB. (For more on the latter, see Kevin Walsh's post, here, or Eduardo Penalver's, here.)
Near the end of her piece, Prof. Hamilton writes:
Means’s case shines a harsh light on their war plan: the so-called “unborn” are actually a higher priority than a raped or intensely suffering woman, and should always trump a woman’s choices over her body, regardless of her personal beliefs. This is about hegemony.
I had to laugh when I read that Notre Dame law professor Richard Garnett is worried that what he regards as “accidental aspects of the case—the Citizens United debate, the “war on women” rhetoric from the last election, the controversies about health care reform—will distract the court from the more specific legal question presented” involving RFRA.
Yet, I must admit that Garnett has nicely summarized the plan of attack for the employers and the Bishops in these cases: Treat women’s medical needs, rape, suffering, and even potential death, as “accidental,” mere “rhetoric,” and just a “distraction.”
Prof. Hamilton's piece inaccurately and therefore misleadingly connects my statement about "accidental aspects of the case" to the Means lawsuit, which I was not addressing (and which had not yet been filed). My characterization of the Citizens United case, the debate about the constitutionality of the Affordable Care Act, and the extent to which the charge of a "war on women" was deployed in the last election as "accidental aspects" of the HHS mandate / RFRA cases that could "distract" was part of an observation that these aspects are the cases' "accidents" as opposed to its "essence" -- which involves, again, the interpretation and application of a particular federal statute. To say that "war on women" rhetoric is a potential distraction from the RFRA question is not to deny the fact (and it is a fact) that "women's medical needs" are quite relevant to that question, given the centrality of the government-interest issue.
I do not believe that the statement can fairly be read or heard to constitute, or even resemble, an effort or plan to trivialize or dismiss women's suffering in the Means case, in the HHS cases, or in any other context. As Prof. Hamilton should know, my claim (and others') regarding the HHS contraception-coverage mandate is that it infringes unnecessarily on the religious-freedom rights of some employers to require those employers to provide the coverage at issue; it is certainly not (to quote Prof. Hamilton) that the "Bishops and those who agree with them" may or should "control women's bodies and health."
National Review Online has posted an interview on What is Marriage? Man and Woman: A Defense that I gave to Zachary Young, a reporter for The Yale Politic.
Here's a bit:
Our argument can explain and justify at the level of principle (and not merely as a matter of subjective preference or sentimental attachment) key features of marriage that cannot be explained or justified at that level by advocates of the revisionist view: (1) Why marriage is inherently a sexual partnership, and not a partnership integrated around other (nonsexual) shared interests or activities (reading novels, playing tennis, watching films, etc.). (2) Why marriage is the union of two persons, not three or more (“throuples” or “triads,” “quadrads,” etc.) in polyamorous sexual ensembles. (3) Why marriage is a sexually closed relationship, not an “open” relationship in which spouses can legitimately agree to permit liaisons with others. (4) Why marriage requires a pledge of permanence and not merely an agreement to stay together for a specified term, or “for as long as love lasts.” (5) Why law and public policy legitimately treat marriage as a matter pertaining to the public interest, and not as a purely private matter (like ordinary friendship or like religious events such as baptisms and bar mitzvahs). Moreover, the conjugal view, unlike the revisionist view, can make sense of the concept of marital consummation by sexual intercourse. Further, it can account for the idea that marriage is inherently, and not merely incidentally, a procreative partnership, and the idea that a valid marriage can be entered into by a man and a woman who, due to the infertility of one or both spouses, will not be able to conceive children. (The key there is to see that the link between marriage and procreation is not a means-end connection. Just as it is a mistake to regard marriage as a mere form of sexual-romantic companionship or domestic partnership, it is a mistake to view procreation and child-rearing as extrinsic ends to which marriage is a means. For a man and woman to marry is indeed for them to enter into a distinctive type of relationship—a conjugal union—that is oriented to procreation and would naturally be fulfilled by having and rearing children together; but being in that type of relationship is intrinsically, and not merely instrumentally valuable.)
The complete text of the interview is available here: