Two left-leaning judges on the Eleventh Circuit Court of Appeals showed on Monday what the Obama administration should do regarding the many remaining cases involving the HHS abortifacients mandate: Give up.
It does not take much to read between the lines in the injunction that a unanimous three-judge panel of the Eleventh Circuit granted Monday afternoon in favor of Eternal Word Television Network, which runs Catholic-themed programming. In the case of EWTN v. Secretary of HHS, it looks to me as if two of the three judges were not eager to grant the injunction but felt compelled to that action by the Supreme Court’s decision on Monday in the Hobby Lobby case. Those two judges — Beverly Martin and Adalberto Jordan — were both appointed to federal district courts by Bill Clinton and both elevated to the appeals court by Obama. Both are considered at least moderately liberal.
The order begins as follows (emphasis is mine): “In light of the Supreme Court’s decision today in [the Hobby Lobby case], we grant the motion of Eternal Word Television Network.” The brief order ends with an unusual and unnecessary line: “We express no views on the ultimate merits of EWTN’s appeal in this case.”
On one hand, that is a tautology: Any injunctive order without a majority opinion accompanying it will by definition “express no views” on the ultimate merits, because an injunction is not a decision on the merits. On the other hand, injunctions are not supposed to be issued unless the court believes there is a “substantial” likelihood that the party granted the injunction will win on the merits. For the majority to fail to explain its injunctive order other than via one clause referencing a Supreme Court case, and then to go out of its way to cast doubt on the strength of the ultimate merits of the grantee’s case, shows only a grudging acceptance of Monday’s undeniable signal from the high court.
It was left to the third judge on the panel, William H. Pryor, to offer a 27-page explanation — brilliantly argued — of why EWTN does indeed enjoy the “substantial” likelihood of ultimate victory. (More on Pryor’s opinion later.) The overall effect reads as if Pryor, with the weight of Hobby Lobby behind him, pulled the other two judges kicking and screaming into what they considered an unpleasant course of action.
Why are these dynamics important? Because if the force of the high court’s decision in Hobby Lobby is such that two otherwise unwilling judges recognize that it weighs heavily in EWTN’s favor in its largely-but-not-entirely-related case, the likelihood is high that the Obama administration will now suffer a whole series of losses in cases against the HHS mandate. Those cases are brought by organizations such as EWTN, the Little Sisters of the Poor, and faith-affiliated colleges — groups that are not themselves churches but that provide services that are clearly church-related. As it is, the administration has already lost about 80 percent of the procedural or lower-court decisions in these cases; that number might now rise awfully close to 100 percent.
Granted, the issue in Hobby Lobby is different from the one in these other cases, in that the former involved closely held, for-profit corporations, while the others involve church-connected nonprofits (giving the latter even stronger religious-liberty claims). Mitigating that advantage, at least slightly, is the fact that these organizations, unlike the corporations, do at least enjoy (in most cases) a nominal accommodation supposedly relieving them of complicity with provision of abortifacients. Therefore, the Left will try to make the case not about religious liberty, but about the supposed comprehensiveness of the “accommodation,” and will argue that the objections of EWTN, the Little Sisters, and others amount to mere phantom claims of victimhood.
They are extremely unlikely to succeed, for three reasons. First, there is almost no way that the five justices who ruled in favor of Hobby Lobby and Conestoga Wood will turn around and rule against the Little Sisters of the Poor. John Roberts, with his always-sensitive political antennae, would croak before allowing the court to look more sensitive to for-profit corporations than it is to famously kind-hearted nuns.
Second, there is a far greater likelihood that the court’s four liberals will join the conservatives for EWTN and the Little Sisters than they did for Hobby Lobby. After all, these same liberals already joined a unanimous opinion in favor of a church-affiliated school in the Hosanna-Tabor case even when the opponent was claiming employment discrimination — a much stronger legal claim than the supposed right to have somebody else subsidize one’s contraceptives. Furthermore, two of the four justices refused to join a key part of Justice Ruth Bader Ginsburg’s dissent in Hobby Lobby, which leaves them a little more free to distinguish that case from EWTN and its legal relatives.
Third, Judge Pryor’s opinion in support of the injunction in EWTN is such a tour de force that it provides a perfect template for an eventual Supreme Court decision in favor of the Catholic TV network, leaving no reasonable loopholes to worry the legal conscience of any doubting Anthonys on the high court.
Pryor quoted Hobby Lobby directly to say that “it is not for us to say that [the network’s] religious beliefs are mistaken or insubstantial.” Continuing to cite Hobby Lobby, he wrote: “Courts must instead ‘determine whether the line drawn [by the network] reflects an honest conviction, and there is no dispute that it does.’” That honest conviction, Pryor added (no longer quoting the Supreme Court), is that even the so-called accommodation offered it by HHS will require EWTN’s complicity in a scheme that is “condemned by the principle of material cooperation in evil.”
This isn’t a newfound objection to one-degree-of-separation accommodations, Pryor explained. Instead, it is thoroughly grounded in a specific decision handed down by Pope John Paul II in a German case where churches in Germany were asked to sign “certificates” attesting that women seeking an abortion had first secured “counseling” from the church. In effect, the certificate was used as a prerequisite for an abortion — which is very closely analogous to the “Form 700” that HHS wants EWTN to provide to the insurance provider “in order” for the insurer to provide the abortifacient coverage to which EWTN objects. The pope ordered the German churches not to comply.
In short, the church had already established its belief that secondhand complicity is still forbidden, because the church will “actually become the agent that enables a host of immoral actions to follow.” Having thus established this standard well before the Obamaites even dreamed of the HHS mandate, it is not for the courts to decide that the network’s belief is insubstantial. Otherwise, judges effectively would be dictating a faith denomination’s doctrine. One can imagine few violations of religious liberty that would be worse.
Pryor did not cite Hosanna-Tabor, but it might be appropriate to do so. Remember, Hosanna-Tabor was a unanimous decision in favor of a religious-liberty claim (albeit a slightly different one, involving church-personnel decisions). Even better, though, Justice Elena Kagan, one of the court’s four liberals, joined Justice Samuel Alito in a special concurrence in that case, holding that the high court has
long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. . . . The mere adjudication of such questions would pose grave problems for religious autonomy: It would require calling witnesses to testify about the importance and priority of the religious doctrine in question, with a civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church’s overall mission.
Likewise, it should not be the court’s role to decide “how important” it is to a church-affiliated organization to avoid producing a document that it believes will provide a direct precondition for an abortion.
Yet, in the EWTN case, Pryor accurately wrote:
It is undeniable that the United States has compelled the network to participate in the mandate scheme by requiring the network not only to sign but also to deliver the form to its third-party administrator of its health-insurance plan. The network must sign a form that, on its face, states that the network’s delivery of it is required “in order for the plan to be accommodated with respect to the contraceptive coverage requirement.”
If the church believes that this activity would make it complicit in grave moral sin, who are the courts to adjudicate the church’s own doctrinal judgment?
The rest of Pryor’s opinion eviscerates all the other legal objections to EWTN’s case. The Obama administration is bound to recognize, meanwhile, that it’s not politically useful to go forth with this certain loser of a case and its legal cousins. The opposition, especially the Little Sisters nuns, inspire exponentially more empathy than any for-profit corporation. The administration has already secured as much political mileage as it can from railing about a so-called war against women, and if it drops its abortifacient mandate now, it also can still rail against a supposedly partisan high-court bloc of five Republican appointees. But if it pushes these other cases all the way to the Supreme Court, it runs the real risk of losing at least 7–2 — thus even further advancing national Republicans’ preferred perspective, one the public is increasingly believing: that the Obamaites are abusing executive power.
It would be far better for the administration politically if HHS were to announce that, in light of the (supposedly awful, unfair, anti-woman, puritanical) Hobby Lobby decision, it has no other choice but to promulgate a new rule that provides broad religious exemptions to its abortifacient mandate. It would thus moot every outstanding case involving non-profit organizations that have identifiable religious affiliations or missions. (Legally, by the way, this would leave in place, for precedential purposes, the few lower-federal-court decisions favoring the administration’s positions. Even if the mandate would no longer apply even in those cases — because the regulation has been changed — the principles identified by those courts would still be binding within those courts’ jurisdictions, rather than being overruled by the Supreme Court.)
This way, Democrats who still want to campaign this fall against the GOP’s “war on women” or against a Republican-dominated court can do so, with all the intensity that this (alleged) victimhood inspires; but the air will go out of the church congregations that might otherwise passionately organize their grassroots against the Left. Winners tend to feel far less motivated than do groups that still feel threatened.
Judges Martin and Jordan obviously read the writing on the Lobby wall: It signals eventual court defeat for the administration across the board in the HHS-mandate cases. If the administration would only recognize it as well, and change its regulation accordingly, it would a) save all sides considerable expense, b) avoid setting a firm precedent contrary to the Left’s interests, and c) preserve whatever political advantages it has gained from this long-running fight.
Conservatives, meanwhile, would lose the intensity behind one of their campaign issues. But we would gain, much more quickly, a lasting legal victory for religious liberty. That victory is far more important than any campaign issue.
— Quin Hillyer is a contributing editor for National Review. Follow him on Twitter: @QuinHillyer.