Helping HHS Mandate Supporters Understand

by Walter M. Weber

The HHS mandate — the rule requiring employers to provide “free” birth-control coverage in their employee insurance plans or pay a penalty — has been challenged in federal courts, and the court of public opinion, across the nation. The theory, as Ed Whelan explains, is pretty simple: forcing someone to subsidize activities he or she finds religiously and morally objectionable, without an overriding justification for doing so, is a straightforward violation of religious liberty.

Yet many supporters of the mandate do not see the problem. In particular, some judges assert that the connection between the employer and the objectionable activity is too attenuated. As one appellate judge wrote in dissent,

First, it is the corporation rather than the [owners] individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the [owners], in some real measure, from the actions of their company. Second, the firm itself will not be paying directly for contraceptive services.

Instead, their company will be required to purchase insurance which covers a wide range of health care services. It will be up to an employee and her physician whether she will avail herself of contraception, and if she does, it will be the insurer, rather than the [owners], which will be funding those services. In the usual course of events, an employer is not involved in the delivery of medical care to its employee or even aware (by virtue of physician‐patient privilege and statutory privacy protections) of what medical choices the employee is making in consultation with her physician; only the employee, her physician, and the insurer have knowledge of what services are being provided. What the [owners] wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.

This reasoning may appear to make sense. After all, we aren’t generally responsible for what others do, for example, with our gifts, their paychecks, or the property we sell them. So let’s test the theory with a hypothetical example. Suppose the time is pre–Civil War, post–Dred Scott (i.e., slavery is legal and protected by the Supreme Court) and the benefit in question is, instead of birth control, ownership of human slaves. The (admittedly anachronistic) federal Department of Labor decides that, to help poor people manage their households and maintain gainful employment outside the home, they should receive subsidies to purchase domestic services, such as childcare, housekeeping, cooking, and other chores. To do this, the DOL imposes regulations saying that companies that employ more than 50 people have to buy insurance for the staff that covers, without copay, the purchase of certain domestic services. The regulation explicitly included providing for such domestic services by buying one slave per every four members of a household. This is touted as a matter of fairness — after all, rich people can buy plenty of slaves already — and slavery is, at least in many states, perfectly legal, indeed a property “right.” Plus, DOL argues, slavery and other domestic services will boost the economy by freeing up potential workers from duties at home.

Not surprisingly, some businesses and their owners object to being complicit in human slavery. These objectors challenge the federal rule as a violation of their religious freedom.

Now reread the judge’s arguments quoted above. Substitute “slave dealer” for “physician,” “domestic” for “health care” or “medical,” and “slavery” for “contraception.” The argument remains pretty much exactly the same.

Would the judges and other mandate supporters who dismiss the current challenges agree that the same arguments would apply to the mandatory provision of insurance to employees to purchase a legal slave? I doubt it. They would immediately see, I hope, that the employers are indeed implicated by such a scheme in a profound and immoral injustice.

The mandate supporters might nevertheless object, claiming the analogy is faulty: “Slavery is obviously wrong. Birth control is not a big deal at all.”

There’s a big problem with this argument, however. Suddenly concerns with the attenuation of the connection have disappeared. Now it’s the underlying moral and religious judgment that is at issue. But courts aren’t allowed to say, “You don’t enjoy religious liberty because I think your beliefs are kooky.” If a judge would recognize a valid objection in the slavery example, that judge should recognize a valid objection to the current mandate.

In other words, the question is not what the judge believes, it is what the objector believes. It is precisely those who embrace disfavored or minority beliefs who most need legal protection for their conscience.

Judges know they are not supposed to pooh-pooh the substance of an objector’s religious beliefs even if those beliefs appear quirky or illogical or even offensive to the judge. But I fear the argument about attenuation masks exactly such a failure to give serious credit to the believer’s position. That is, the judge is second-guessing the objectionableness itself, rather than identifying a lack of genuine connection between the objectionable activity and the government coercion at issue.

A jurist who desires to apply the law with integrity, and who sincerely wants to weed out any underlying personal ideological disagreement that might cloud the analysis, should ask him or herself, “Would I reason the same way if the issue was something I strongly objected to?” If the judge can honestly say yes, so be it. But at least the judge would recognize the full implications of the precedent being set.

— Walter M. Weber is senior litigation counsel at the American Center for Law and Justice.

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