Supplemental Briefing in Nonprofit Contraception Mandate Litigation Filed

The claimants and the federal government have now both filed their supplemental briefs, as requested by the Supreme Court in the order I discussed here. Reply briefs are due April 20.

After denying that any change to what it presently offers to nonprofits is needed, the basic thrust of the government’s brief is that (1) the Court’s proposal would not work for self-insured claimants; and (2) the Court’s proposal would only work for others “but only at a real cost to its effective implementation.” At page 15, the government says this about those claimants with insured plans: “In theory, however, the government could provide that the same  legal obligations arise following any request by an eligible employer with an insured plan for an insurance policy that excluded contraceptives to which the employer objects on religious grounds.” The exact mechanism through which this would work for self-insured plans remains unclear. The brief concludes by asking for a definitive resolution from the Court.

The claimants’ brief argues that (1) yes, as to insured claimants, there are many ways in which the employees of objecting claimants can receive the free coverage the government wants them to receive: it could impose a regulatory requirement on insurers to provide a separate plan for such employees, not backed by the threat of what are described as “draconian penalties” on the employers. Employees would have 2 insurance cards instead of 1; and (2) as to self-insured claimants, there is a related less restrictive means as well: “If commercial  insurance companies begin making truly separate contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges. Indeed, making such contraceptive-only plans available to employees of petitioners with self-insured plans would underscore that such coverage is truly separate from the coverage provided by petitioners that use commercial insurers, as employees of other employers would be receiving essentially the same contraceptive-only policies.” (20)

Stay tuned.

The Supreme Court Order in the Little Sisters of the Poor et al. Cases

This week, the Supreme Court issued a somewhat unusual order in Zubik v. Burwell (the nonprofit litigation against the Obamacare contraception mandate) asking for more briefing. Here are the substantive provisions:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

I can’t really improve on the insightful commentary of my friend, Rick Garnett, on what this might mean. It’s hard, as he says, to escape the conclusion that this is probably good news for the petitioners (after the bad news of Justice Scalia’s passing). And it’s always the politically expedient thing to put the onus on insurance companies.

But there is one way in which the order might not be so good from the claimants’ perspective. What of self-insured claimants? Any resolution to the case that would simply rely on insurers to resolve this issue would not account for those nonprofits, like the Little Sisters of the Poor, who self-insure through a trust called the Christian Brothers Employee Benefits Trust. Shifting the (substantial) burden of compliance to the “insurer” in this sort of case is not shifting it from the employer.

Something to watch in the upcoming briefing.

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.

Scribes and Holidays

Thanks to Marc and Mark for asking me to blog with them for the next few weeks. As I am just a law-and-religion amateur, being able to exchange thoughts with scholars of their caliber is a real honor.

To get things started, I haven’t seen much about this dissent a couple of weeks ago by a group of five Tenth Circuit judges from a denial of an en banc hearing in cases involving the contraceptive mandate as applied to non-profits.  The tenth Circuit, sua sponte, considered whether to rehear the cases en banc; the plaintiffs, who were challenging the mandate, had lost before the initial panel. The full court denied rehearing en banc , but five judges were sufficiently disturbed to write a strongly-worded dissent. The core of their argument is as follows:

Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?

This is the real danger, I think. You have what John McGinnis calls a “scribal” caste without much (as Mark rightly notes) personal connection to traditional religious thought or concepts determining what is “really” important to the religion of the litigants.  It is no surprise that in such cases, the judges favor the state, because how serious could religious people actually be about matters the scribes see as unimportant?

A second, non-legal topic. My wife and I have three grade-school children, and for the first time this year, I heard multiple conversations over the summer about the multitude of school holidays that need to be accommodated into the schedule. Not just Rosh Hashanah, Yom Kippur, Christmas and Easter, but also Eid and the Lunar New Year are now recognized in the New York public schools; the Hindu festival Diwali is also being considered. So on the one hand, legal scribes reject accommodation for beliefs not considered “core,” yet other arms of the state are increasingly conceding the centrality of expression of religious beliefs in a very public way. Since as a general matter, I believe culture eventually prevails over formal legal doctrine, this kind of contrast is something to watch.

Thomas More, Villain

Anton Lesser Thomas More

Anton Lesser as Thomas More in Wolf Hall (BBC)

When it comes to up-market historical fiction, nobody delivers like the Tudors. There’s so much entertainment value in that Renaissance dynasty: royalty; costumes; cool accents; lust and murder; political and religious intrigue; the works—plus enough history to make you feel virtuous for watching. In the 1930s, studios turned out films like The Private Life of Henry VIII and Fire over England, which, for my money, still has the best portrayal of Elizabeth on film, by the great British actress Flora Robson. In the 1960s, there was Anne of the Thousand Days. Forty years ago, PBS broadcast Elizabeth R and The Six Wives of Henry VIII. More recently, there was Showtime’s The Tudors. And now on PBS’s Masterpiece there is Wolf Hall, a BBC dramatization of Hilary Mantel’s 2009 novel.

All historical fiction involves anachronism, of course, and depictions of the Tudors often reveal more about contemporary issues than they do about the past. Robert Bolt’s A Man for All Seasons portrayed Thomas More as a liberal dissenter from state ideology, a man committed to individual conscience and the rule of law. (In the 1960s, liberals identified with such people). Glenda Jackson’s 1971 portrayal made Elizabeth an icon for the rising feminist movement.

I was able to catch an episode of Wolf Hall on Sunday, and it seems to me the new series likewise reflects our current cultural moment. Maybe I spend too much time thinking about these things, but to me it is impossible to miss the allusions to current debates about rational government and religious belief. The message, for religious liberty, is not a congenial one.

Wolf Hall—which, incidentally, has great production values and wonderful performances, especially by Damian Lewis as Henry VIII—inverts the conventional portrayal of the Henrician Reformation. Most past film and television versions, even those sympathetic to Henry, show More as a kind of hero, a noble, if misguided, martyr for freedom of conscience. In Mantel’s version, by contrast, it’s Cromwell, the supporter of state orthodoxy and More’s tormentor, who is the hero. And More, the man who resisted the state from religious conviction, is the unalloyed villain.

Now, More was a more complicated figure than widely understood. Even saints have failings. He may have been, as Swift famously wrote, “a person of the greatest virtue this kingdom ever produced,” but, as chancellor, he persecuted Protestants and approved burning heretics at the stake. Mantel’s portrayal goes beyond offering a helpful corrective to the conventional wisdom, though. Her More is not deeper or truer to the historical record. He is simply evil, a nasty piece of work—cold, fanatical, and sadistic.

Mantel’s Cromwell, by contrast, is warm, self-effacing, and pragmatic, even wistful—a family man, though with a ruthless edge. As between him and More, he is easily the more reasonable. Religious enthusiasm is not for him; he is far too insightful and levelheaded. He is also more compassionate. When More tells him that torture is for the victim’s own good—the real More forcefully denied that he ever tortured anyone—Cromwell is aghast. Cromwell is far too tender-hearted to believe something like that. He cannot bear to see someone burned at the stake for heresy. More, we gather, would be delighted.

I know nothing about Mantel’s politics. Perhaps her choices in Wolf Hall are purely aesthetic. Maybe she set herself the artistic challenge of portraying Cromwell, one of British history’s great villains, in a favorable light. But I’m guessing she has an agenda. Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.

It’s a powerful message, and one with increasing influence. Perhaps this explains why PBS is advertising Wolf Hall as “a historical drama for a modern audience.” The fact that this hatchet job on Thomas More appears in an impeccably well-done BBC production—surely the gold standard in upper middle class entertainment—shows how fast our culture is changing, and how much work defenders of religious liberty have before them.

Supreme Court Vacates Seventh Circuit’s Opinion in Notre Dame Challenge to the Contraception Mandate

A noteworthy cert. grant, vacate, and remand (“GVR”) by the Supreme Court yesterday. Notre Dame’s challenge is to the “accommodation” accorded by the Obama Administration to nonprofit organizations with religious objections to the contraception mandate. To say that the Seventh Circuit’s panel decision (authored by Judge Posner, joined by Judge Hamilton, and with a dissent by Judge Flaum) against Notre Dame was deeply skeptical of the claimant’s objection would understate matters. The fact that the Supreme Court has vacated that decision and remanded the case for reconsideration in light of the Court’s Hobby Lobby decision is interesting.

Movsesian at Federal Bar Council

L-R: Noel Francisco, MLM, Judge Brian Cogan, David Schaefer

On Monday, I participated in a panel discussion, “The Evolution and Implications of the Religious Freedom Restoration Act,” at the Federal Bar Council’s annual Winter Bench & Bar Conference. (Honor compels me to reveal that the conference took place at the Casa de Campo resort in the Dominican Republic, where the February weather is much nicer than in Queens. But I returned to Queens right after my panel to teach my classes. The sacrifices scholars make). Founded in 1932, the Council is an organization of lawyers who practice in federal courts within the Second Circuit. The winter conference attracts not only lawyers, but also judges–Supreme Court Justice Samuel Alito is on the program this year–and discussions are substantive and enlightening.

My panel concerned a topic we’ve covered often here at the Forum, namely, religious accommodations under RFRA. I gave a twenty-minute overview of the topic, addressing the history of religious accommodations in American law, RFRA itself, the Court’s decisions last term in Hobby Lobby  and Wheaton College, and their immediate aftermath. Moderator Judge Brian Cogan (EDNY) then led the discussion, which included a mock argument on a hypothetical case involving the federal Family and Medical Leave Act–attorneys Steven Edwards (Hogan Lovells) and Steven Hyman (McLaughlin & Stern) took opposite sides–and interventions by Noel Francisco (Jones Day) and David Schaefer (Brenner Saltzman & Wallman). We wrapped up with audience Q&A.

I wasn’t the only member of the Center family to participate in the conference. Board member Mary Kay Vyskocil (Simpson Thacher) worked hard to coordinate the RFRA panel, though she unfortunately could not attend the conference, and Board member Judge Richard Sullivan (SDNY) will appear on a panel later this week.

Thanks to the Council for inviting me and to my fellow panelists for an engaging discussion!

 

Vaccination, the Nones, and Hobby Lobby

measles-facts-1422935523285-master495

Map from the New York Times

Measles is back. In recent weeks, an outbreak that originated in Southern California has spread across the nation (above). Public health officials seem confident the outbreak is explained, in large part, by the fact that significant numbers of parents no longer have their children vaccinated. These parents rely on exemptions that state laws, like California’s, provide for parents who object to mandatory vaccination programs. Perhaps surprisingly, the resistance is disproportionately high in wealthier, better educated, bluer neighborhoods, the sort of communities that pride themselves on their enlightened, progressive outlook.

The outbreak has obvious, unsettling public health implications. We are witnessing the recurrence of a serious, highly contagious disease we thought we had eradicated. In this post, though, I’d like to discuss some important cultural and legal implications. Culturally, the outbreak suggests the growing influence of the Nones—those Americans, maybe as many as 20% of us, without a formal religious affiliation. As I’ll explain, many of the parents who object to vaccination reflect the spirituality of the Nones. Legally, the outbreak seems likely to provide ammunition for opponents of last term’s decision in Hobby Lobby, the Contraception Mandate case. As I’ll explain, though, Hobby Lobby wouldn’t allow parents to claim religious exemptions in this context.

Let’s start with the cultural implications. To understand why the measles outbreak suggests the growing influence of the Nones, consider the reasons parents give for refusing to vaccinate their children. Some parents, it’s true, worry about the threat of toxins and an alleged link with autism. But the link with autism has been debunked; scientifically, there’s nothing to it. Some parents belong to religions that oppose vaccination. But the number of religions that forbid or even discourage vaccination is actually quite small. Conventional religious teachings cannot explain the widespread resistance we’re seeing, particularly in those blue, progressive neighborhoods.

Based on media accounts, much of the resistance comes from parents who object to vaccination, not because of science or conventional religion, but “personal belief.” Indeed, California law speaks in terms of a “personal belief exemption.” Many of the objectors have an intuitive conviction that vaccination is not right, natural, or wholesome. They associate it with capitalism and anti-environmentalism, which they see as morally deficient. Immunization makes these parents sincerely uncomfortable on a gut level. One told the New York Times, simply, “Vaccines don’t feel right for me and my family.”

Now, it’s impossible to hear these objections without thinking of the Nones. The Nones are a diverse group with varied commitments and philosophies. But sociologists have identified a common characteristic. Nones reject organized religion, not faith. In fact, they tend to be quite comfortable with spirituality, as long as it is personal and authentic: they are the “Spiritual but Not Religious.” So when a parent says vaccination seems wrong to her on a visceral level, and that she therefore refuses to allow her children to go through the procedure, she is reflecting the spirituality of the Nones. Of course, I don’t claim that all Nones reject vaccination, or even that all the parents who object to vaccination are Nones. But the Nones’ worldview pretty clearly provides the anti-vaccination movement with much of its considerable force.

Next, the legal implications. It seems to me very likely that opponents will use the outbreak to attack the Court’s decision last term in Hobby Lobby, the Contraception Mandate case. In fact, in her Hobby Lobby dissent, Justice Ginsburg argued that that, under the Court’s reading of RFRA, employers with religious objections could refuse to cover vaccinations for employees. This argument is a bit ironic, since, as I say, most religions don’t object to vaccinations. But some religions do object, and anyway, under Supreme Court precedent, the personal, anti-vaccination beliefs of Nones could be treated, for legal purposes, like traditional religious convictions. So Justice Ginsburg’s argument has a surface plausibility.

The Hobby Lobby Court expressly declined to address the implications of its holding for vaccination requirements. But Justice Ginsburg’s argument is misleading. Under RFRA, the government must offer an accommodation where a less restrictive alternative exists, that is, one that would allow the government to fulfill its compelling interest without substantially burdening the claimant’s exercise of religion. In Hobby Lobby, an alternative did exist. The government could have allowed the employer to opt out of coverage and have the plan administrator itself pay for the contraception. A similar accommodation could be worked out for vaccinations. If an employer didn’t want to pay, the plan administrator could be required to do so.

But here’s the important point: the vaccinations would take place. Hobby Lobby would not allow parents with religious objections to refuse to have their kids vaccinated at all. This is because there is no less-restrictive alternative to a mandatory vaccination protocol. For vaccination to work in preventing the spread of serious disease –surely a compelling government interest—more than 90% of a population must be vaccinated. (Scientists refer to this as the percentage necessary to create “herd immunity”). If the government allowed exemptions for people with religious objections, the percentage of vaccinated children could quickly fall below this number, endangering the whole population. In one California location, for example, the Times reports that exemptions have allowed 40% of schoolchildren to skip their measles vaccination.

Now, there is a complication. All states allow parents to claim exemptions from mandatory vaccination requirements for medical reasons. In some very rare cases, vaccination can endanger the health of a child, and in those circumstances, parents can decline to have their child vaccinated. Well, you might ask, doesn’t the possibility of medical exemptions suggest that the government doesn’t have a compelling interest in vaccinating absolutely everybody? And doesn’t that mean the government must also allow religious exemptions?

Maybe—some lower court caselaw does suggest that outcome. But I doubt it. No medical protocol is ever completely categorical; we don’t insist that doctors carry out a course of treatment even if it’s not medically indicated. It’s hard to imagine the Supreme Court would hold that allowing any medical exemption at all would necessarily require an exemption for religious reasons. It wouldn’t make sense.

Anyway, an outbreak of the sort we’re experiencing now is not an inevitable consequence of Hobby Lobby. It’s worth keeping that in mind in the weeks ahead.

Horwitz, “The Hobby Lobby Moment”

Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.

“The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought” (Krason ed.)

In January, Rowman & Littlefield will release “The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought ” edited by Stephen M. Krason (Franciscan University of Steubenville). The publisher’s description follows:

In “The Crisis of Religious Liberty: Reflections from Law, History, and Catholic Social Thought,” contributors consider a series of significant challenges to the freedom of religious conscience and expression in the United States today. Such challenges include the mandate from the U.S. Department of Health and Human Services concerning contraceptive, sterilization, and abortifacient coverage in health insurance plans; the question of health-care institutions requiring medical personnel to participate in morally objectionable procedures contrary to their religious beliefs; legal liability for individuals and businesses refusing on religious grounds to provide services for same-sex marriages; the prohibition on students from engaging in religious expression in public schools; the use of zoning laws to block Bible studies in private homes; and a variety of other issues that have surfaced in recent years with respect to religious freedom. While some argues that religious liberty extends no further than the freedom to worship, contributors suggest otherwise, noting that the exercise of religious liberty is greater than a highly restrictive definition of the notion of worship.

The Crisis of Religious Liberty comprises eight chapters and an afterword that explore the nature and basis of religious freedom in terms of Catholic social thought. They cover such topics as the Catholic Church’s teachings from the Vatican II’s Dignatis Humanae (Declaration on Religious Liberty), the decline of a historic rapprochement among different religious perspectives in the United States in the face of an increasingly aggressive secularism, perspectives on religious liberty from the founding of America, and how the religious liberty situation in the U.S. compares with the rest of the world.

%d bloggers like this: