Must the Little Sisters of the Poor implement the HHS Mandate?

Today is the deadline to file comments on the HHS Mandate Notice of Proposed Rulemaking. Among the many groups commenting today are the Little Sisters of the Poor. Their comments filed today are available here, and their prior statements on the HHS Mandate are available here and here.

As this 2005 Wall Street Journal article explains, the Little Sisters of the Poor have “an odd business plan” for their homes for the elderly poor: “Beg for help, lavish it on residents.” But more confounding than the Little Sisters’ business plan is the idea that the federal government would force them to arrange their health coverage for their homes’ employees to ensure coverage of female sterilization and the free flow of all FDA-approved contraceptives, including abortifacient drugs and devices.

President Obama is a college sports fan, but he should know better than to think that the Little Sisters of the Poor are simply “a euphemism in college sports to describe a weak opponent.” The Little Sisters are real; the HHS Mandate burdens their religious exercise; and the Obama Administration has the power to lift that burden. Lifting that burden is also the President’s duty under federal law.

Some excerpts from the comments:

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RFRA Sponsors’ Amici Curiae Brief in Hobby Lobby case

Several federal legislators who voted for the Religious Freedom Restoration Act of 1993 and continue to serve in the Senate or the House of Representatives filed an amici curiae brief in the Tenth Circuit earlier today. The lead amicus curiae is Senator Orrin G. Hatch, the principal Republican co-sponsor of RFRA.

I was pleased to have had the opportunity to work on the brief with superb lawyers not only here in Virginia (Matthew Fitzgerald and John Adams of McGuireWoods), but also in New Jersey (Brendan Walsh of PashmanStein) and Oklahoma (Andy Lester and Carrie Williams Vaughan of Lester, Loving & Davies). I will highlight various aspects of the brief in later posts, but for now I’ve posted the Statement of Interest and Summary of Argument below the fold.

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If RFRA protects for-profit corporations, what’s to stop Jehovah’s Witnesses’ companies from refusing coverage for blood transfusions?

An argument against recognizing RFRA coverage of for-profit corporations that seems to be popping up with some regularity goes like this: Once courts recognize the right of evangelical employers to buy insurance coverage that excludes abortion-causing drugs and devices, or the right of Catholic employers to buy insurance coverage that excludes contraceptives, there is nothing to stop Jehovah’s Witness employers from buying insurance coverage that excludes coverage for blood transfusions. See, e.g., Matthew Boudway at dotCommonweal (“Should an overzealous Jehovah’s Witness be able to get a group plan that excludes coverage for emergency blood transfusions, even if none of his employees are coreligionists?”); Americans United for Separation of Church and State (“The logic of Plaintiffs’ argument would transcend the provision of coverage for contraception. A Jehovah’s Witness could choose to exclude blood transfusions from his company’s health-insurance coverage.”).

This argument obviously appeals to some, or they would not bother making it. But there are several reasons that the argument is weak. And the fact that some advance this argument seriously in reasoned public debate may work against improving mutual understanding of religious liberty. Consider:

(1) Has any Jehovah’s Witness employer ever made such a claim? I’m not aware of any. Yet all of the legal tools available to make such a claim have been available for years. It is hard to see how the roll down the slippery slope to this location would get started by rulings about the contraceptives mandate if it has not yet started in some other way.

(2) RFRA prohibits the government from substantially burdening the exercise of religion. The religiously objecting employer under RFRA seeks protection from a government mandate. I’m not aware of any blood transfusion coverage mandate by the government–probably because there is no problem out there of employers limiting coverage in this particular way. If Jehovah’s Witness employers have not sought to limit coverage even when there is no mandate preventing them from doing so, figuring out the scope of their religious freedom in this regard seems like an idle exercise.

(3) The people putting this argument forward may not even understand what Jehovah’s Witnesses actually believe. While the religion teaches its adherents to avoid blood transfusions, it is not at all clear (at least to me, anyway) that the religion teaches this as a matter of the moral law binding on all, rather than a form of divine positive law that is not binding on those outside the community of religious adherents. (For an articulation of this distinction, see this discussion by Mark Shea.)

(4) RFRA is not a free pass for a religious exemption, but its application does trigger the requirement for the government to satisfy strict scrutiny, and the government can sometimes satisfy that test. The application of strict scrutiny should stop the roll down the slippery slope from reaching the point where the government cannot use certain regulatory tools to achieve a compelling government interest. Even assuming that a substantial burden analysis comes out the same, the compelling interest is easier to identify in with respect to emergency blood transfusions. The need for an emergency blood transfusion is unpredictable. And in comparison with emergency contraception, which is available over the counter at most pharmacies (for around $40 for a generic or $50 for a brand name), emergency blood transfusions are much more expensive.

(5) The casual deployment of this Jehovah’s Witness example is sometimes coupled with related arguments that reveal a misunderstanding of the religious beliefs of other groups. For example, the same amicus curiae brief in which Americans United for Separation of Church and State advanced the Jehovah’s Witness argument also argued that “Catholic owners could deprive their companies’ employees of coverage for end-of-life hospice care and for medically necessary hysterectomies.” With statements like this, it is difficult to believe that this brief was reviewed before filing by someone familiar with Catholic moral teaching. Catholics object neither to end-of-life hospice care nor to medically necessary hysterectomies.

(6) A casual approach to religiously based moral beliefs that differ in some ways from majority-held moral beliefs can easily lead to harm through a failure to appreciate and offer reasonable accommodations. While my research into this issue did not uncover an example of a Jehovah’s Witness employer denying insurance coverage for a blood transfusion, it did reveal a case in which a state denied to a Jehovah’s Witness on public aid coverage for a bloodless liver transplant that was available out-of-state at lower cost than an in-state transplant requiring a transfusion. Mary Stinemetz eventually prevailed on her Free Exercise challenge to this denial, but by the time the case was over, her condition had apparently deteriorated too far for her to any longer be eligible for a transplant.

(7) Most of the people who are advancing this particular slippery-slope argument probably have no idea of the contributions that Jehovah’s Witnesses have made to the law of religious liberty in the United States. See, e.g.,Thomas v. Review Bd.; West Virginia Bd. of Educ. v. Barnette.

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The Third Circuit is wrong: RFRA protects corporations, without any carve-out of for-profit corporations from its protections

A split panel of the Third Circuit recently joined the minority of federal courts that have denied preliminary injunctive relief to for-profit corporations and their owners in RFRA and Free Exercise challenges to the HHS Mandate. Both judges in the majority (Judge Rendell and Judge Garth) endorse the district court’s conclusions that “a secular, for-profit corporation . . . has no free exercise rights under the First Amendment, and is not a “person” under RFRA.” Writing in dissent, Judge Jordan contends (powerfully) that these conclusions rest on erroneous premises and merit further consideration by the court. If anything, Judge Jordan’s dissent understates the problems with the majority’s adoption of these conclusions because the standard of review did not require him to reach definitive conclusions. There is no legal basis for a judicial carve-out of “secular, for profit corporations” from RFRA’s protections.

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal.

Rather than adopt the obviously incorrect interpretation of “person” to exclude corporations, courts have carved up the category of corporations into “religious corporations” and “secular, for-profit corporations.” But there is no textual basis for this distinction in the statutory term “person.”

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example, Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

As to “exercise of religion,” it is plain that a religiously based refusal to do something otherwise required by law is an “exercise of religion.” Indeed, two of the leading cases on the meaning of the Free Exercise Clause involved individuals who refused, in the course of their employment (profit-seeking employment!) to do something. Because of their religious beliefs, Eddie Thomas refused to fabricate tank turrets and Adele Sherbert refused to work on Saturdays. These religion-based refusals were their protected exercises of religion.

A corporation’s religion-based refusal to engage in a particular action is also an “exercise of religion.” A corporation’s religion-based refusal to open its stores on Sundays, for example, is as much an exercise of religion as an individual’s refusal to  work on Saturdays. The involvement of a profit motive makes no difference. People work for money, and some choose not to work on certain days for religious reasons. Similarly, for-profit corporations operate for money, and some choose not to operate on certain days for religious reasons.

Some judges seem to think that a for-profit corporation can do nothing but seek profits. In the Third Circuit decision mentioned above, for example, Judge Garth insists that “the purpose–and only purpose–of the plaintiff Conestoga is to make money!” There is no reason to characterize corporate purpose so narrowly, and certainly no basis in corporate law to do so. Even a publicly traded corporation with an obligation to act in the best interests of shareholders can be “socially responsible” and incur various costs in pursuit of long-term value and goodwill.

Unfortunately, the misunderstandings involved run even deeper. Judge Garth approvingly adopts Judge Heaton’s reasoning in the Hobby Lobby case that “[g]eneral business corporations . . . do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” But this reasoning applies as well, of course, to religious corporations. All corporations act through “the intention and direction of their individual actors.” When performed under certain circumstances, however, the actions of individuals count as the action of the corporation. We have no problem understanding this concept in the context of discrimination. If a for-profit corporation were to announce a policy to refuse to hire Muslims, or adherents of some other religion, there would be no difficulty in attributing that religion-based discrimination to the corporation. The law recognizes corporate intention and corporate motivation all over the place. If a for-profit corporation can discriminate on the basis of religion, why can’t a for-profit corporation perform some other act on the basis of religion? When Hobby Lobby Stores, Inc., for example, decides to honor the Sabbath by staying closed on Sundays (and thereby forgoing profits the corporation would otherwise earn), that is a corporate act on the basis of religion–a corporate “exercise of religion.” And just as a corporate refusal, for religious reasons, to operate on a particular day is a corporate “exercise of religion” under federal law, so too is a corporate refusal, for religious reasons, to include particular drugs and devices in the group health plan offered by the corporation to its employees.

Statutory law does sometimes distinguish between for-profit and not-for-profit corporations. Under Title VII, for example, for-profit corporations may not limit hiring to co-religionists, while some not-for-profit corporations can. But this only shows that Congress knows how to make that distinction when it wishes to do so. Congress made no such distinction in RFRA.

If people think that, as a matter of good public policy, there should be such a difference, then Congress can amend RFRA. Or Congress can amend the PPACA to explicitly exclude the application of RFRA’s protections from the statutory scheme. These exclusions might raise some constitutional questions, but we are not even close to that right now. Instead, some courts are incorrectly carving out certain corporations from RFRA’s blanket coverage. These judicial carve-outs are based on mistaken statutory interpretation, a mistaken understanding of the meaning of “exercise of religion,” and a mistaken understanding of corporate action.

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Reconsidering RFRA and ripeness: some reflections on litigation-induced clarity (with specific reference to RFRA)

A prior episode in RFRA history suggests why it would be imprudent for federal courts to dismiss the pending RFRA claims against the Obama Administration’s contraceptives mandate without the benefit of oral argument. The long and short of this prior episode is that the need to take a clear litigation position on a RFRA matter brought about one of the quickest reversals of an Administration’s legal position in the last few decades. It happened when the presidency was held by a former constitutional law professor–in the Clinton Administration.

The case was Christians v. Crystal Evangelical Church. The Clinton Administration needed to address how the RFRA, then a relatively new statute of uncertain constitutionality (it was signed early in the Clinton presidency), interacted with a provision of the bankruptcy code authorizing a bankruptcy trustee to claw back transfers made in a period leading up to the declaration of bankruptcy. The issue was posed when a bankruptcy trustee (Christians) successfully clawed back thousands of dollars that had been donated over the course of the prior year to a church (Crystal Evangelical Church). When the decision allowing this clawback was appealed to the Eighth Circuit, the Clinton Administration intervened to take a position on the constitutionality of the RFRA and  the validity of the clawback provision as applied to donations to a church. The Administration filed a brief arguing that the RFRA was constitutional and that the clawback provision was valid as applied, notwithstanding RFRA; donations to the church should be considered just like donations to non-religious charities (which could be clawed back).

The Administration’s position in Crystal Evangelical led to substantial political and legal pushback. Among other things, Senator Orrin Hatch took to the Senate floor and denounced the Administration’s position. Senator Hatch’s position on the RFRA carried great weight, as he was a principal sponsor of the Act (along with Senator Kennedy). Senator Hatch argued that the position in the Clinton Administration’s amicus curiae brief was “contrary to the plain meaning of the act, to the detriment of religious free­dom.” He asserted that, “[d]espite the act’s widespread support and its clearly defined and agreed upon objective, its purpose is being un­dermined by this administration.” Expounding further, Senator Hatch stated:

Perhaps  this is the kind of limited protection President Clinton envisioned when he  committed himself to the protection of one of the most precious of all-Amer­ican liberties—religious freedom—but I can say quite confidently that this is not the type of protection Congress fought so hard and so long to restore. The Department’s position is a slap in  the face to our religious community, and it should not stand. I personally believe that President Clinton must not know what they are doing, or he would put a stop to it. So, in a sense, it is a slap in his face, as well, since he was one of the strongest supporters of what we were trying to do. I hope that he will get involved and direct the Department to back off—especially since there is no fraud here— and allow the Religious Freedom Res­toration Act to have the widespread, broad coverage that we intended here in Congress in the first place.

The Clinton Administration decided to take a closer look at its position. DOJ lawyers sent to the White House to describe the Administration’s position to counsel at the White House found themselves meeting with President Clinton himself. (Seth Waxman recounts this meeting and its significance to his later work as SG in this BYU Law Review article.) Some time later, the responsible DOJ lawyers were told by the White House that the President had decided that the position taken in the brief was wrong and that the brief should be withdrawn. This took place the night before oral argument. The career DOJ lawyer to argue the appeal did not find out until the morning of oral argument.

The posture of the Crystal Evangelical Church case is far different from the contraceptives mandate litigation. But in that current RFRA litigation, like in Crystal Evangelical Church, taking a position in court could prompt a  harder look at the Administration’s position on a legal question. The benefit of bringing the federal government into court for argument is to force anticipation of having to answer questions in open court. And the need to formulate clear answers can stimulate a clarification or even a change of opinion.

Clarification is certainly needed in the contraceptives mandate litigation. In February, the Administration finalized its rule limiting exemption from the contraceptives-without-cost sharing mandate for insurance coverage to a narrow band of religious employers. But the Administration also announced that it would develop an accommodation for non-exempt employers with religious objections. Based on this promised future accommodation (and accompanying one-year safe harbor from government enforcement of the contraceptives mandate against non-exempt employers), the federal government has moved to dismiss several challenges to the mandate.

A federal judge in D.C. last week dismissed Belmont Abbey College’s challenge to the HHS contraceptives mandate on standing and ripeness grounds. On standing, Judge Boasberg held that Belmont Abbey’s injury was speculative because the contraceptives mandate remains a moving target. On ripeness, Judge Boasberg reasoned that the challenged rule was not sufficiently final to render the dispute fit for judicial resolution.

The Becket Fund for Religious Liberty, which is representing Belmont Abbey, filed a motion for reconsideration of that dismissal yesterday. It was not until I read the motion that I realized that Judge Boasberg had dismissed the case without hearing oral argument on the government’s motion to dismiss. I think that was a mistake. Here is the first question that the federal government should be brought into court to answer: Will Belmont Abbey College’s health plans be exempt from the contraceptives mandate, or will they not?

The government’s position has been wonderfully ambiguous on this most critical question. The final regulations adopted in February 2012 continue to divide the world of employers subject to the contraceptives mandate into two categories: exempt and non-exempt. Belmont Abbey College is in the non-exempt category, and it seeks to vindicate statutory and constitutional claims that, if successful, would render it exempt. The government has proposed to “accommodate” non-exempt religious objectors like Belmont Abbey College. Yet these objectors seek what has already been denied them in the final regulations: exemption. In its advanced notice of proposed rulemaking, the federal government has claimed that its proposed accommodation would be effectively like an exemption. But what does that mean, especially when coupled with the final adoption of a regulation that classifies objectors like Belmont Abbey College as “non-exempt”? Yet another question that the government should have to answer in open court.

And there are others. Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption? The answers to these and other questions would be helpful to a court deciding the ripeness of non-exempt employers’ claims.

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ACLU’s President on Forced Provision of “Contraception Services” Over Religious Objections–Circa 1992

On May 13, 1992, ACLU National President Nadine Strossen appeared before the House Judiciary Committee, Subcommittee on Civil and Constitutional Rights, to testify in support of the Religious Freedom Restoration Act. (Interestingly, the Obama Administration’s former Domestic Policy Advisor, Melody Barnes, also attended, as assistant counsel to the subcommittee). Strossen’s prepared testimony, now included in the legislative history of the RFRA, includes a litany of examples showing how, “[i]n the aftermath of the Smith decision, it was easy to imagine how religious practices and institutions would have to abandon their beliefs in order to comply with generally applicable, neutral laws.” Among other threats to religious practices and institutions, Strossen observed that “[a]t risk were such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services . . . .”

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Times-Dispatch op-ed on RFRA and the contraceptives mandate

Today’s Richmond Times-Dispatch contains an op-ed that I authored about the availability of a claim under the Religious Freedom Restoration Act for religious organizations that object to the contraceptives mandate. The policy changes announced Friday are certainly a step in the right direction. But the RFRA litigation will continue.

The ending of the op-ed–written earlier in the week and quickly revised immediately after the President’s announcement on Friday afternoon–is more tentative than I now believe is warranted. I wrote: “Should legal action continue to be necessary — and it very well could as more details of the administration’s changed plan take shape — the federal courts remain open for the enforcement of Congress’ broad understanding of religious liberty against an unreliable executive branch.”

If Friday’s announcement is the Administration’s “final offer,” continued litigation will be necessary. The reason why is captured well in the following statement by a group of distinguished legal scholars:

The reason for the original bipartisan uproar was the administration’s  insistence that religious employers, be they institutions or individuals, provide insurance that  covered services they regard as gravely immoral and unjust. Under the new rule, the government  still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

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Greenhouse’s telling omissions re: RFRA, contraceptives, and conscience

Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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RFRA, Kmiec, and the too-narrow religious exemption from the contraceptive mandate

America Magazine has a post by law professor Doug Kmiec setting forth how President Obama can “confess error” in requiring Catholic organizations, and others morally opposed to contraception, to provide insurance coverage for that to which they are morally opposed. The statement that Kmiec would advise President Obama to deliver includes the following:

Recently we made a mistake. While the constitution doesn’t mandate religious exemptions from general laws, I believe we should accommodate as many beliefs as possible and to the greatest extent possible without jeopardizing the purpose of the law.

The focus on the Constitution alone is curious. The Religious Freedom Restoration Act, or RFRA, requires that federal laws and regulations adhere to something akin to the “belief” about accommodation that Kmiec would have President Obama articulate. The need to accommodate need not rest on anything as ephemeral as President Obama’s faltering beliefs about religious liberty. There’s a federal statute for that.

The RFRA claim should come as no surprise. It is the lead claim in the Belmont Abbey case brought by the Becket Fund. And as far as I can see, it’s not even a close question whether the HHS mandate runs afoul of the RFRA. Perhaps I haven’t been paying enough attention, but I’m surprised at how little press the RFRA violation has received. For example, the recent Los Angeles Times article by David Savage that explains why the contraceptive mandate could face difficulties if it ever reached the Supreme Court discussed First Amendment jurisprudence but not the RFRA.

(In writing up this blog post, I came across several posts (here, here, here, here, here, and here) by Ed Whelan at National Review Online’s Bench Memos explaining why the mandate violates the RFRA. I’d be grateful for pointers to any responses, for as mentioned, I do not see how this is a close question.)

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