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).
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:
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.
The Government does not contest the existence or breadth of the ACA’s exemptions, but instead justifies each one individually – the grandfathering provisions are intended only to be temporary; small employers are not exempt from the Mandate, but from the mechanisms that impose penalties if they do not provide health coverage, which they are encouraged to do through tax and other incentives; fully exempting religious employers but not religious non-profit organizations is rational because employees of the former are less likely to use contraception than employees of the latter. Assuming all this to be true, it misses the point – the RFRA requires the Government to identify a compelling interest in applying the law to “the particular claimant whose sincere exercise of religion is being substantially burdened.” O Centro, 546 U.S. at 431-32. The fact that these exemptions work the same harm to the Government’s interests as would any exemption granted to plaintiffs greatly undermines the Government’s assertion that it has a compelling interest in enforcing the Mandate against plaintiffs.
Note also that the cases on which the government relied were rejected as inapposite. A Seventh Circuit case involving a requested exemption by a Rastafarian prisoner to smoke marijuana was rejected in part because the government had not exempted any other prisoners from the marijuana smoking ban. And as to Lee, whatever narrow exemptions Congress had created there were not the same as the numerous exemptions in this case.
The court also held that the government had not satisfied its burden to use the least restrictive means to achieve its compelling interests. Here’s the court on the question of least restrictive means:
The Mandate does not burden plaintiffs’ religion because it allows their employees to receive and use contraception at no cost; indeed, “it goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on these subjects.” Korte, 735 F.3d at 684. Rather, the Mandate burdens plaintiffs’ religion by coercing them into authorizing third parties to provide this coverage through the self-certification requirement, an act forbidden by plaintiffs’ religion.
In view of this burden, numerous less restrictive alternatives are readily apparent. The Government could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation. It could also provide tax incentives to consumers or producers of contraceptive products. Many of these options have been recognized as feasible alternatives by other courts. See Korte, 735 F.3d at 686.
It is true that a proposed alternative scheme must be workable in order to qualify as a viable less restrictive means….The Government first argues that the alternatives above are infeasible because the defendants lack statutory authority to enact some of them. This argument makes no sense; in any challenge to the constitutionality of a federal law, the question is whether the federal government could adopt a less restrictive means, not any particular branch within it. It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution. If defendants lack the required statutory authority, Congress may pass appropriate legislation.
The Government also argues that these alternatives would impose new administrative costs or not be as effective in advancing the Government’s goals. As for the first argument, the Government has not identified these costs with any specificity, and in any event a less restrictive alternative is not infeasible simply because it is somewhat more expensive for the Government….As for the second, the Government argues that the proposed alternatives would be less effective because they require women to take extra, burdensome steps including “find[ing] out about the availability of and sign[ing] up for a new benefit,” rather than the “minimal logistical and administrative obstacles” they would enjoy under the Mandate. The Government does not, however, further explain these steps and why they would be burdensome on plaintiffs’ employees. If these steps only entail filling out a form, it seems that the burden of filling out that form should fall on those who have no religious objection to doing so. If finding out about these benefits is burdensome, the Government could make a stronger effort to inform the public about them.
Last, but not least: it appears that the TPAs actually do not need to provide contraceptive coverage either. This is truly extraordinary. I am still trying to understand it, but I think it goes something like this. Under the “accommodation,” the burden ostensibly falls on the TPAs to provide contraceptive coverage to the employees of the self-certified employer. But what if they don’t comply? The government would then rely on ordinary ERISA law to enforce the mandate against the TPAs. But it turns out that the particular plans at issue–“church plans”–are not subject to ERISA. Therefore there is no enforcement mechanism as against the TPAs. Therefore the TPAs are under no obligation to comply with the “accommodation” at all. The government attempted to use this fact to argue that the non-profits here had no standing, and that claim was rejected.
So the upshot is that the mandate forces plaintiffs to take action which constitutes a substantial burden on their religious beliefs, but which ultimately may serve no purpose at all.