Posted on by Mark Movsesian

Cardinal Suggests Legal Challenge to Contraception Mandate

In a letter he sent Friday to Catholic bishops, Cardinal Timothy Dolan, President of the US Conference of Catholic Bishops, stated that, notwithstanding President Obama’s invitation to “work out the wrinkles,” talks between the Conference and the White House on the revised contraception mandate have not gone well. According to the cardinal, White House staff have stated that the Administration will not expand the the exemption for religious institutions and have suggested the bishops listen to more “enlightened” voices within Catholicism. As a result, the cardinal wrote, the Conference is considering litigation:

In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Hosanna-Tabor  is not directly relevant to this issues surrounding the mandate, of course, but I take it the cardinal is using the case more or less rhetorically. In Hosanna-Tabor, the Court unanimously rejected the Administration’s assertion that the  Free Exercise Clause does  not apply to a church’s employment of its minsters — as the Court stated, a rather “remarkable” assertion that suggests an unfortunate antipathy for the special protection the American Constitution offers religious communities.

Posted on by Marc O. DeGirolami

The Immanent Frame on the HHS Mandate

I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

Posted on by Marc O. DeGirolami

Obama Administration Files Motion to Dismiss in Contraception Mandate Case

Back in November, Belmont Abbey College sued Secretary of Health and Human Services Kathleen Sebelius after the Obama Administration announced the original HHS mandate — the one in which religious entities like the Catholic Church would be compelled to list and pay for contraceptive and abortifacient products right under the terms of their employee health plan.  That mandate, and not whatever modification the President suggested on February 10, now has the force of law.  The Obama Administration itself made the original mandate the final rule.

The Department of Justice has now filed a motion to dismiss.  DOJ takes no position in this motion on the constitutionality of the mandate, or on its permissibility under the Religious Freedom Restoration Act.  It further admits that the original mandate, and not the February 10 proposed modification, has the force of law (see p.6).  Instead, DOJ says that Belmont Abbey College (A) might have its health plan grandfathered; (B) can’t demonstrate that it will suffer an imminent injury (because it will not be subject to the mandate until 2014); and (C) has not shown that the case is “ripe” for review under the justiciability doctrine of ripeness.

I am not familiar enough with which health plans get grandfathered-in to know whether (A) is a plausible ground for the motion.  (B) seems puzzling.  After all, the health care mandate which is itself the subject of the Affordable Care Act litigation is being litigated right now, with arguments scheduled before the Supreme Court at the end of March.  Yet that mandate to purchase insurance does not go into effect until 2014 either.

I am not a standing scholar, but (C) seems to me the least plausible ground for the motion.  The original contraception mandate now has the force of law.  Whatever may happen after the election with respect to the proposed  February 10 modification, the original mandate is now final — nothing “informal or tentative” about it.  Abbott Laboratories v. Gardner (1967).  Any hypothetical future modifications — bracketing the issue of whether they would work any appreciable change — are entirely speculative.  I’d appreciate illumination from readers who are expert in standing doctrine, however.

Posted on by Marc O. DeGirolami · 6 Comments

Garry Wills Puts the “Con” in Conscience

Here is a dyspeptic piece by Garry Wills which gets numerous things wrong about the nature of the conscience claim being asserted in response to the HHS mandate.  Under the heading, “The Phony Religious Liberty Argument,” Wills says:

The bishops’ opposition to contraception is not an argument for a “conscience exemption.” It is a way of imposing Catholic requirements on non-Catholics. This is religious dictatorship, not religious freedom.

Contraception is not even a religious matter. Nowhere in Scripture or the Creed is it forbidden. Catholic authorities themselves say it is a matter of “natural law,” over which natural reason is the arbiter—and natural reason, even for Catholics, has long rejected the idea that contraception is evil. More of that later; what matters here is that contraception is legal, ordinary, and accepted even by most Catholics.

The confusions in these short paragraphs are astonishing, particularly for a writer of Wills’s deserved reputation.  First, whether “most Catholics,” including Wills, “accept[]” contraception is completely irrelevant.  The issue is not what Wills, or any other dissident Catholic, thinks ordinary or accepts.  The issue is what those with authority to speak on behalf of the Catholic Church believe.  And we have strong evidence that they believe that paying for contraception and abortifacient services is anathema.  The Church is a hierarchical institution, and so it matters who has authority to speak on its behalf to the agents of the state.  Much as it may distress him, that’s not Wills.

Second, to say that opposition to the mandate represents “religious dictatorship” may sound good, but the substance of the comment is wrong.  No one — least of all “the bishops” — is preventing anyone from obtaining whatever products they like.  No one is monitoring anyone, no one is tracking the way that employees use their money, no one is stopping anyone else from using their money as they like.  The issue is not “dictatorship” — religious or secular — and this sort of overheated rhetoric is quite silly.  The issue is whether the state can compel the religious employer to pay for products for its employees as to which it objects in conscience (I am bracketing the question of what President Obama’s February 10 announcement does).  Obviously there are disagreements about that question.  But the resolution of that issue, one way or the other, is not evidence of “dictatorship.”  It’s something far short of that, but something we ought to attend to nevertheless.

Posted on by Marc O. DeGirolami

Oversight Committee Holds Hearing on HHS Contraception Mandate

Congress’s Committee on Oversight and Government Reform is currently holding a hearing on the Administration’s HHS contraception and abortifacient mandate.  The title of the hearing is, “Lines Crossed: Separation of Church and State.  Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?”  The hearing is being live-streamed at the attached link.

Posted on by Mark Movsesian

Administration Did Not Consult Justice Department on Revised Contraception Mandate

I’m sure some readers will think of this as inside baseball, but it’s actually rather revealing. In response to questioning from Orrin Hatch (R-Utah) at yesterday’s Senate Finance Committee hearing, HHS Secretary Kathleen Sibelius admitted that HHS had not sought a legal opinion from the Justice Department before issuing last week’s “compromise” mandate on employer contraceptives coverage. Here’s the exchange, as relayed by the Deseret News, a Utah paper:

“The President’s chief of staff and press secretary have claimed that this mandate is consistent with the First Amendment, and the final rule you issued last Friday states that it is consistent with the First Amendment and the Religious Freedom Restoration Act . . . . Let me just ask you again, did HHS conduct or request any analysis of the constitutional or statutory religious freedom issues?” Hatch asked Sebelius. . . .

“Well we certainly had our legal department look at a whole host of legal issues,” Sebelius said.

Sebelius also acknowledged that she had not contacted the Justice Department for an opinion, which would be a common practice when facing a delicate constitutional question.

Hatch asked her, “Did you ask the Justice Department?”

“I did not. No sir,” she replied.

As the report suggests, executive departments and agencies routinely request the advice of the Justice Department on proposed regulations that implicate serious constitutional and statutory questions. In fact, a specific office at Justice, the Office of Legal Counsel, handles such requests, often on an urgent, rush basis (I know, I used to work there). So it really is remarkable that HHS did not seek OLC’s views on legal questions of this magnitude. It suggests that the Administration does not take these questions seriously, an attitude that may come back to haunt it — after the November election, of course.

Posted on by Marc O. DeGirolami · 1 Comment

First Lawsuit to Challenge the (Revised) HHS Mandate

The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius.  The plaintiff is a private non-profit with about 50-60 employees.  Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final.  This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.

I think the RFRA claim is a serious one.  One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in.  ¶¶ 17, 20.   One to keep an eye on.  (h/t Professor Friedman)