Yesterday a panel of the Sixth Circuit decided Michigan Catholic Conference v. Burwell, in which a number of religious employers and religiously affiliated nonprofits challenged the HHS contraceptive mandate as violating their rights under the Religious Freedom Restoration Act. Unfortunately, the unanimous panel led by Judge Karen Nelson Moore has uncritically bought the Obama HHS line on “accommodation” of religiously affiliated nonprofit employers, repeating the errors of Judge Richard Posner back in February in the Notre Dame case, and without any Judge Joel Flaum (the dissenter there) on this panel to point out the court’s errors, either.
Judge Moore’s opinion accepts all the bad arguments about how the “accommodation” works—namely, that employers receiving the “accommodation” are not paying for or contracting for or even “facilitating” the contraceptive coverage, and therefore are not burdened by the requirement as they claim. While I can understand the court’s plausible judgment (without endorsing it before more consideration) that the burden question is one of law, not of fact (whereas the sincerity of the claim to be burdened is admitted by the court to be a question of fact), the court has badly misunderstood the unbreakable web of moral responsibilities entailed by the “accommodation,” and thus erroneously held that there is no substantial burden triggering RFRA protection.
First, the employers who purchase insurance from a provider are assuredly paying for the contraception, claims to the contrary in the text of the regulation notwithstanding. They pay premiums to the insurance company, and in the regulation itself the presumptive savings on costs of pregnancy and childbirth (due to an expected decline in pregnancies) are said to give the company the resources to provide “free” coverage of contraceptives. Stop paying your premiums and see if they continue to provide the contraceptives.
Well, one might say, stop paying the premiums and they’ll drop all your coverage! Just so. All your employees’ coverage—including the “free” contraceptives—is provided by the insurance company by virtue of a contract under which premiums must be paid.
This leads me to the real crux of the matter, for there are also self-insuring employers covered by the “accommodation” whose third-party administrators are being squeezed to provide the contraceptive coverage, and those TPAs really do have to bear the costs themselves, or turn to the government for reimbursement. Yet even these self-insuring employers are not morally off the hook. It is by virtue of their employment that employees get the coverage, and it is by virtue of the employer’s contract with this or that particular TPA that the coverage is provided by said TPA. This the Sixth Circuit panel is too obtuse to understand, swallowing the nonsense of the Obama DOJ. Here’s a sample:
The crux of the appellants’ “facilitation” argument is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees . . .
Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.
Pure sophistry. But for the employer’s submission of the form, identifying the party with whom it has contracted to provide the coverage, there would be no coverage from that provider. If the employer uses Blue Cross as an insurer or TPA, and then decides it would rather use Kaiser instead, it is by virtue of that decision of the employer that Kaiser and not Blue Cross provides the coverage. And again, we should not let the primary relationship here slip from view: by virtue of their employment, the employees get the coverage. The employment itself, the contract with the insurer or TPA, and the filling out of the self-certification form, taken together, are causative of the provision of coverage, whoever is paying for it. That is sufficient to establish at least material cooperation with the use of contraceptives, and culpability for that cooperation is not erased by the government’s coercion of either a) the employer filling out the form or b) the insurer or TPA with whom one does business. Where there is any cooperation that one’s faith teaches is sinful, there is undeniably a substantial burden on religious exercise.
For more links that explain the appalling deception the Sixth Circuit has fallen for, see here. For opinions that don’t fall for it, see Judge Flaum’s dissent in the Notre Dame case (beginning on p. 31) and Judge Lee Rosenthal’s opinion in the East Texas Baptist University case.