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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Rope-a-dope rulemaking to put off religious liberty litigation loss?

Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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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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Another powerful Gerson commentary on the illiberalism of the contraceptive mandate

Michael Gerson has another powerful commentary on the illiberalism of the Obama Administration’s “final decision that Catholic universities, hospitals and charities will be compelled to pay for health insurance that covers sterilization, contraceptives and abortifacients.” Gerson writes:

 Obama is claiming the executive authority to determine which missions of believers are religious and which are not — and then to aggressively regulate institutions the government declares to be secular. It is a view of religious liberty so narrow and privatized that it barely covers the space between a believer’s ears.

Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-­clericalism.

(HT: Mirror of Justice)

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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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Gerson on Obama v. Catholic institutions

Michael Gerson has some strong words in today’s Washington Post about the Obama administration’s stance vis-a-vis Catholic institutions. Here’s a taste:

HHS has drawn conscience protections so narrowly that Catholic colleges, universities and hospitals — any Catholic institution that employs and serves non-Catholics — will be required to offer health coverage that includes contraception and drugs that cause abortion. In global health grants, new language is appearing that requires the integration of family planning and “reproductive health” services, effectively barring the participation of Catholic institutions. Archbishop Timothy Dolan, president of the USCCB, calls these policies an “assault which now appears to grow at an ever-accelerating pace in ways that most of us could never have imagined.”

The main victims of this assault are not bishops but the poor and vulnerable. USCCB-sponsored human trafficking programs, for example, provide employment assistance, legal services, child care and medical screening. But because case managers won’t refer for abortions, HHS would rather see these programs shut down in favor of less effective alternatives. This form of anti-religious extremism counts casualties.

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Alternative state standing theory #1: indirect injury from incremental expenditures attributable to mandate compliance through Medicaid enrollment

As explained in a prior post, the jurisdictional infirmities exposed by the Fourth Circuit’s rulings in Virginia v. Sebelius and Liberty University v. Geithner should bring renewed attention to the alternative state standing theories in Florida v. HHS not yet addressed by any court. There are two such theories.  This post discusses the first, and a later post will examine the second.

The states’ lead theory is one of indirect injury from the incremental Medicaid expenditures each state will have to make when presently uninsured individuals comply with the mandate by enrolling in Medicaid. See States’ 11th Cir. Br. at 67-69.

The federal government has argued that this allegation of indirect injury is insufficient as a matter of law, that the claimed injury rests on speculation, and that any potential injury from individuals’ compliance with the mandate is neither actual nor imminent. Additionally, relying on Pennsylvania v. New Jersey, 426 U.S. 660 (1976), the federal government has argued that “it is difficult to see how a State can claim injury on the ground that its citizens choose to accept benefits the State offers them under State law. Reply to Mot. to Dismiss at 13.

The distinction between direct and indirect injuries in the state standing context is traceable to Florida v. Mellon, in which Florida sought to challenge a federal tax on the ground that it would “have the result of inducing potential taxpayers to withdraw property from the state, thereby diminishing the subjects upon which the state power of taxation may operate.” 273 U.S. 12, 17-18 (1927). The Court held that Florida could not go forward with the suit because the State was not in immediate danger of sustaining “any direct injury as the result of the enforcement of the act in question.” Id. at 18. In short, the Court drew a line between direct and indirect injury, and held that it lacked jurisdiction because the claimed fiscal injury arising by virtue of the actions of private citizens in response to the federal law was indirect.

While the line between indirect and direct may be hard to identify in certain cases, the distinction seems administrable enough to foreclose the claimed injury to states resulting from individuals’ compliance with the individual mandate. Recall, also, that states are not permitted to sue the federal government as parens patriae. Allowing states to rely on indirect fiscal injury could provide for easy circumvention of that limitation.

In attacking the states’ indirect injury argument as speculative, the federal government has argued that (i) the pre-mandate status quo already imposes costs on the states in the form of uncompensated care; and (ii), moving more people into insurance may result in a net reduction of costs borne by the states even though some of that insurance is state-provided insurance through Medicaid. The federal government has also pointed to circuit court cases denying standing to states on the ground that the complained-of fiscal effects were too attenuated. See Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976); Iowa v. Block, 771 F.2d 347, 352-54 (8th Cir. 1985).

If the Supreme Court were to consider this speculation argument, it is unclear (from the filings I have reviewed, anyway) whether the factual record would be sufficiently developed to ground a prediction about the effects of the mandate on state fiscs (which are likely to vary from state to state). If the record were to be found insufficiently developed, that would cut against the states because it is their burden to establish standing.

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