Over at ACSBlog, law professor Leslie C. Griffin has written a deeply flawed piece about the pending cert petitions in Little Sisters of the Poor v. Burwell and Roman Catholic Archdiocese of Washington v. Burwell (RCAW). Both cases challenge the Obama Administration’s so-called “accommodation” for religious conscientious objectors who cannot comply with the contraceptive mandate. As I have mentioned before, the Administration and its left-wing allies have particularly strong political incentives to keep Little Sisters out of public view, since it is a particularly egregious example of the Administration’s casual disregard for religious liberty.
I’ll begin with Griffin’s discussion of the “accommodation,” review several major problems with Griffin’s view of “substantial burden” analysis, and then offer some closing thoughts on why Little Sisters is the best vehicle for some of the issues raised by the accommodation.
The “Accommodation”
What is the “accommodation”? The Affordable Care Act (Obamacare) originally authorized the Department of Health and Human Services to mandate coverage of “preventive care.” HHS interpreted this provision to mandate that all Obamacare plans must cover a set of 20 abortion-causing and non-abortion-causing drugs. (The Green and Hahn families’ objections to providing abortion-causing drugs were the basis for the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. (2013).)
Recognizing the potential for religious conflict from this mandate, HHS granted an exemption to some religious entities, like churches. These entities did not have to do anything; if they fit within the exemption, they needed to take no action whatsoever. But the exemption doesn’t cover groups like the Little Sisters of the Poor, non-church insurance provided by religiously-affiliated insurance companies like the Southern Baptist Convention’s Guidestone, or other entities that are not churches. So HHS created a lesser process that it calls an “accommodation.”
To use the accommodation, the religious employer – say, a nun – must fill out, sign, and deliver to the government a form that gives the government the power to commandeer the employer’s insurance plan, which it then uses to provide employees with free contraceptives. Whereas churches simply qualify for the exemption, groups receiving an accommodation have to fill out a roadmap to help the government provide the contraceptives and authorize the government to use their plans.
Unfortunately, Professor Griffin has badly misunderstood how the accommodation works. Here is what she says (all emphases added):
Under the opt-out mechanism, the employer merely has to inform the Department of Health and Human Services (HHS) of its objection to contraception, identify what kind of insurance plan it offers, and provide the name and contact information of the insurance plans’ third party administrators (TPAs) and health insurance issuers. Once HHS or the insurers receive the notification, the burden of coverage shifts completely to the TPAs and health insurance companies, who provide the contraceptive coverage in separate plans, with no financial input from the religious employers.
But contraceptive coverage under the accommodation is not provided through a “separate plan” at all; it is provided through the employer’s plan. To understand this, all you have to do is look at the form, which is available on the Internet. It contains this important bit of fine print: “This form or a notice to the Secretary is an instrument under which the plan is operated.” In ERISA jargon, this means that the form actually alters the employer’s existing insurance plan.
In fact, HHS has said at least twice that the accommodation works this way. It said so in an early regulation creating the accommodation:
As a document notifying the third party administrator(s) that the eligible organization will not provide, fund, or administer payments for contraceptive services, the self-certification is one of the instruments under which the employer’s plan is operated under ERISA section 3(16)(A)(i).
HHS said so again just this year, when it explained that it chose to force TPAs to provide coverage because the TPAs are part of the existing “coverage administration infrastructure.” Because the TPA acts as the agent of the employer under the insurance plan, the government has to force the employer (the plan administrator) to authorize the TPA to provide the contraceptives. In essence, the government is forcing religious employers to change their own insurance plans.
“Substantial Burden” Analysis
Professor Griffin’s next mistake – and this one is appalling – comes in the discussion of the “substantial burden” created by the HHS mandate. She describes the Little Sisters’ argument this way:
Their lawyer [Paul Clement] argues that the courts may not question that this moral belief is automatically a substantial burden under RFRA because it appears substantial to the sisters.
Not even close. In their cert petition, the Little Sisters explicitly rely on both the mandate and the penalties for noncompliance as a substantial burden:
The mandate and the penalties for noncompliance here are identical [to those in Hobby Lobby], and petitioners sincerely believe that the only avenues for complying with the mandate violate their religion. That should be the end of the substantial burden inquiry.
Did Professor Griffin forget to read the brief?
Griffin’s failure to understand the most basic terms of the “substantial burden” debate is especially problematic because she ends up positing the superiority of “legal modes of reasoning” over what she calls “moral casuistry.” (Let’s assume that Griffin is using the term “casuistry” in its technical sense, and not as a pejorative synonym for “Jesuitical” arguments.) For Griffin, the Little Sisters are asking to make “moral casuistry” a “substitute for law.” The two categories are irreconcilable, in her telling; courts must only apply “legal modes of reasoning.”
But for all her talk of “legal modes of reasoning,” it’s not clear what legal test Griffin thinks the courts ought to apply in evaluating whether government action creates a “substantial burden.” She clearly likes the Tenth Circuit’s approach, but that court specifically disagreed with the Little Sisters’ moral objections about the process, saying:
[The Little Sisters] contend this act substantially burdens their religious exercise because it “triggers” the provision of contraceptive coverage, makes them complicit in the larger delivery scheme, and demands their ongoing involvement. We disagree. The accommodation relieves Plaintiffs of their statutory obligation to provide contraceptive coverage to their plan participants and beneficiaries, and as we discuss below, taking advantage of that accommodation is not a substantial burden on religious exercise.
That sounds a lot like disagreement with the Little Sisters’ moral beliefs. In effect, Professor Griffin wants to privilege the court’s beliefs about complicity over those of the Little Sisters. As an amicus brief filed on behalf of Orthodox Jewish rabbis argued, “if a court determines that a plaintiff has misunderstood the substantiality of his own religious beliefs, the government is excused from showing a compelling justification for its rule. Such a determination is indistinguishable from determining the validity of a religious belief.”
Griffin also makes the inexplicable mistake of treating “substantial burden” as a trump card that immediately results in a victory for the plaintiff. If this were true, then the government could not “ask conscientious objectors to war to register with the Selective Service, apply and interview for CO status, or perform alternative service. CO status would become completely a matter of personal belief.” But RFRA doesn’t invalidate all government action that causes a “substantial burden” on the plaintiff’s religious exercise. Sure, government action that creates a “substantial burden” must survive strict scrutiny, but the government would have a much stronger case against the conscientious objectors Griffin identifies than it does against the Little Sisters.
Vehicle Thoughts
The parties have briefed the advantages and disadvantages of each vehicle extensively, so I will only make a few comments on this point. The major benefit of granting cert in Little Sisters is that it squarely presents the constitutional question of whether the First Amendment allows HHS to make an arbitrary distinction between religious institutions and treat them differently based on what forms they are required to submit to the IRS. (I made the same tax status point in an amicus brief filed in support of cert.) This raises particular First Amendment concerns because, as some of the amici point out, Congress did not authorize HHS to distinguish between religious entities, even in Obamacare.
And while it considers the constitutional question, the Court would also have an opportunity to reaffirm that it meant what it said in Thomas v. Review Board (1981) and applied to RFRA in Hobby Lobby: When a religious objector draws a moral line, “it is not for us [judges] to say that the line he drew was an unreasonable one.” Lower courts have struggled to understand complicity objections to the HHS mandate, so reaffirming Thomas yet again might remind the lower courts that although appointment to the federal bench confers many privileges, it does not provide an enhanced faculty for moral reasoning.