Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2

by Ed Whelan

See Part 1

Now let’s turn to the next question under RFRA: whether the HHS mandate substantially burdens plaintiffs’ refusal, on religious grounds, to provide health insurance that covers contraceptives (including drugs that sometimes operate as abortifacients) and sterilization.

In her majority opinion, Judge Sykes soundly reasons that the substantial-burden inquiry is straightforward. (Pp. 54-60.) Each company is under a legal obligation to comply with the mandate, and the individual family members who set company policy are obligated to ensure that the company complies. “Refusing to comply means ruinous fines”—$100 per day per employee—“essentially forcing the Kortes and Grotes to choose between saving their companies and following the moral teachings of their faith.” (P. 57.) Compare that (as I discuss in part II of my law-review essay on the HHS mandate and RFRA) with the single fine of $5 that constituted a substantial burden in the landmark Free Exercise ruling in Wisconsin v. Yoder (1972).

Sykes deftly disposes of the government’s badly confused argument that the HHS mandate’s burden on the plaintiffs’ religious exercise is insubstantial because (as she summarizes the argument) “the provision of contraception coverage is several steps removed from an employee’s independent decision to use contraception.” (P. 57.) As she nicely puts it (p. 59):

[I]t goes without saying that [plaintiffs] may neither inquire about nor interfere with the private choices of their employees on [contraception, abortifacient drugs, and sterilization]. They can and do, however, object to being forced to provide insurance coverage for these drugs and services in violation of their faith.

It’s that coerced coverage that infringes their religious rights. Under elementary principles of religious freedom, it is simply no business of a court to impose on religious believers the court’s own view of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct.

In her dissent, Judge Rovner spends some 36 pages (pp. 102-138) winding her way to the conclusion that the HHS mandate does not substantially burden the individual plaintiffs’ exercise of religion. (She doesn’t need to address the burden on the company plaintiffs here, as she has already (wrongly) knocked them out. See Part 1.) Despite recognizing that the Supreme Court has “rejected the directness or indirectness of the burden as a controlling factor in free exercise cases” (p. 114), Rovner somehow proceeds to make directness an essential component of a substantial burden: “A substantial burden is one that bears direct, primary, and fundamental responsibility for making the plaintiff’s religious exercise impracticable.” (P. 121 (emphasis added).)

Applying this misunderstanding, Rovner offers “two key reasons” why the HHS mandate “poses no direct burden on the Kortes’ and Grotes’ exercise of religion.” (P. 121 (emphasis added).) First, second-guessing the individual plaintiffs’ own understanding of their religious commitments and ignoring their role in managing their companies, she contends that the HHS mandate does not require them “to do anything that violates the Catholic Church’s disapproval of contraception.” (P. 122.) “[W]hat they are really objecting to,” she brazenly claims, “is the private choices that employees and their families might make in reliance on health care coverage that includes contraceptive care.” (P. 126.) No: What they are objecting to, as Sykes spells out in the majority opinion, is “being forced to provide insurance coverage for [contraceptive] drugs and services in violation of their faith.” As Sykes properly recognizes, “the judicial duty to decide substantial-burden questions under RFRA does not permit the court to resolve religious questions or decide whether the claimant’s understanding of his faith is mistaken.” Rovner fails to confine her inquiry to its proper realm.

The second of Rovner’s “key reasons” is that it is the companies, not the individual plaintiffs, against whom the HHS mandate directly applies. But that reason depends entirely on Rovner’s mistaken understanding that a burden must be direct in order to be substantial. Rovner thus ignores the undisputed reality that, as Sykes sums it up (p. 54 n. 17; see also pp. 11-15), “the Kortes and the Grotes as controlling shareholders and directors set all company policy and personally direct the activities of their corporations.” In the special context of these closely held family-owned companies, any distinction between direct burdens on the companies and indirect burdens on the individual plaintiffs is especially flimsy.    

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