A couple of observations about the government's Questions Presented in Conestoga Wood

Having very recently graded a bunch of briefs for a student moot court competition, I may be more attentive than usual to the particularities of how any given brief frames the Questions Presented. That may be why I paused over the formulations of the Questions Presented in the government’s brief in the Conestoga Wood case. These formulations do an excellent job of framing persuasive but not overly argumentative Questions Presented. Recognition of the built-in persuasive force of the first formulation, in particular, reveals an aspect of the government's case worth attending to.

The government’s brief formulates the first QP as follows: “Whether the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.” There is subtle advocacy in this formulation’s phrase “otherwise entitled by federal law,” advocacy whose very subtlety contributes to its effectiveness. The “federal law” that grants the purported entitlement at issue is not a statute on par with the Affordable Care Act or Religious Freedom Restoration Act but rather federal regulations through which the government was obligated to implement both the ACA and RFRA. The government’s formulation of the Question Presented builds in a presumption that these regulations are valid, a presumption that itself is part of an answer to the Question Presented. I do not point this out to criticize the government’s formulation, which is effective and well within the bounds of fair advocacy. I point this out, instead, to draw critical attention to baselines issue that Rick Garnett and I have previously posted about.

The government’s brief formulates the second QP this way: “Whether the requirement that non-exempt, non-grandfathered group health plans include coverage of contraceptives violates the Free Exercise Clause of the First Amendment.” This formulation is not notable for any particular advocacy, but rather for its clarity and simplicity.