Chief Justice Roberts’s latest rewriting of Obamacare was not a complete debacle. Rather, as has become his pattern, the chief tossed conservatives a consolation prize. The most significant, and underappreciated, aspect of King v. Burwell was that it rejected the received wisdom that the IRS had authority to redefine Obamacare. The agency, the Court found, “had no expertise in crafting health insurance policy.” The IRS rule at issue in the case, which affected the price of health insurance for millions in three dozen states, was far beyond the skill set of the Treasury Department. Going forward, King puts another cornerstone of the Affordable Care Act in jeopardy. Because the Department of Health and Human Services has absolutely “no expertise in crafting” exemptions for religious groups from the contraception mandate, its regulations are entitled to no deference. The Supreme Court’s salvation of Obamacare may have also saved the Little Sisters of the Poor.
Believe it or not, the Affordable Care Act that Congress enacted does not actually require that employers provide plans that cover emergency contraceptives. Rather, all the law says is that qualified plans must offer women, without any additional costs, “additional preventive care and screenings.” What are those “care and screenings”? Congress punted on the controversial issue, delegating that task to the Department of Health and Human Services. In turn, HHS delegated to the Institute of Medicine the role of determining which “preventive care and screenings” should be required under the ACA. Consulting with a number of health organizations, but no pro-life groups, the Institute of Medicine determined that the ACA should require that virtually all employers cover all FDA-approved forms of birth control. This includes emergency contraceptives, such as “Plan B” and other brands of the morning-after pill. HHS promptly adopted IOM’s recommendation (no surprise there).
Under the statute, as opposed to the regulations, the only employers exempt from the mandate were churches and other houses of worship. Religious nonprofits such as the Little Sisters of the Poor (an order of nuns) were initially required to cover emergency contraceptives for their employees. In response to widespread outrage, HHS published several complicated rules that attempted to offer a religious accommodation to certain nonprofit groups but not others. As is often the case with the Obama administration, however, these regulations disregarded the statute in an area where HHS lacked any expertise.
This brings us back to King v. Burwell. In that heartbreaker of a case, the Court upheld the payment of subsidies on federal exchanges, even though the statute limits subsidies to “exchanges established by the state.” As Justice Scalia aptly put it, “pure applesauce.” However, the cloudy decision had an important silver lining. In his opinion for the Court, Chief Justice Roberts rejected the notion that the IRS was able to simply transmogrify the meaning of the ACA through regulations. Rather, the courts are charged with interpreting the laws Congress enacts, unless Congress “expressly” delegates that responsibility to the agency. The Chief explained that “it is especially unlikely that Congress would have delegated this decision [to decide where subsidies can be paid] to the IRS, which has no expertise in crafting health insurance policy of this sort.” In other words, unless Congress “expressly” assigned this important decision to the agency, “this is not a case for the IRS.”
This holding does not bode well for the contraception mandate. Whatever trivial expertise the Treasury Department may have had in “health insurance policy,” HHS had no specialization in minimizing burdens to religious liberty. Zip. Zero. Zilch. Nada. Simply stated, this was “not a case” for HHS from the outset. Indeed, before the ACA was enacted it was inconceivable that HHS would require any employers, let alone religious nonprofits, to cover emergency contraceptives. Most of the attention in 2010 was focused on whether Obamacare would be used to publicly fund abortions. In researching my new book, I could not find anyone in the religious-liberties community who was concerned that the law could be used to force religious nonprofits to provide plans with emergency contraceptives. Even pro-life Democratic representative Bart Stupak, who was a decisive leader in gathering votes to pass the ACA in the House, said that the contraception mandate “clearly violates” his understanding of how Obamacare was designed.
There is no evidence that Congress ever intended for HHS to make such delicate decisions concerning faith.
Further, there is no evidence that Congress ever intended for HHS to make such delicate decisions concerning faith. During oral arguments in Burwell v. Hobby Lobby Stores, Justice Kennedy made just this point. He asked the solicitor general “what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Kennedy added, “Shouldn’t we indicate that it’s for the Congress, not the agency, to determine” who gets an exemption under the Religious Freedom Restoration Act? Justice Kennedy is exactly right. Congress did delegate to HHS the authority to determine which drugs should be covered by the contraception mandate. But it did not delegate to HHS the authority to delicately craft accommodations for some religious groups and not others.
#related#So where does this leave groups like the Little Sisters of the Poor? In King v. Burwell, the Court promptly dispatched the IRS rule, which the agency lacked the expertise to issue, and focused on the text of the statute. In the Little Sisters’ appeal, the Supreme Court should follow a similar route: disregard the HHS accommodation, which the agency has no expertise to craft, and focus on the text of the statute. Once we get past the accommodation, all we are left with is the ACA that Congress voted on. Here, the Little Sisters get a big win. Since the accommodationless statute that Congress wrote, coupled with recommendations from the Institute of Medicine, imposes a substantial burden on the religious exercise of the Little Sisters, the mandate must be halted. As the Court held in Hobby Lobby, “the contraceptive mandate, as applied to closely held corporations, violates RFRA.” The outcome here, as applied to religious nonprofits, would be no different.
Without having to find that the accommodation violates the Religious Freedom Restoration Act, the Court could find that the unqualified agency cannot decide who gets a religious accommodation. The legislature, and not HHS, has to go back to the drawing board to decide how best to provide access to emergency contraceptives while respecting religious liberty. This is a role for Congress, not for HHS trying to play God.