Bench Memos

Law & the Courts

Curiouser and Curiouser

Last week, federal district judge Wendy Beetlestone issued a long opinion that bars the Trump administration from enforcing its final rules that would exempt employers with religious or moral objections from complying with objected-to portions of the Obama administration’s contraceptive mandate. I’m still working my way through the opinion, but the more I do, the more topsy turvy the entire matter appears to be.


1. Judge Beetlestone rules that the Health Resources and Services Administration, the HHS agency charged by the so-called Patient Protection and Affordable Care Act (“ACA,” aka Obamacare) with the duty to promulgate “comprehensive guidelines” for “preventive care” for women, had no authority under the ACA to exempt any employers from the Obama administration’s contraceptive mandate on religious or moral grounds. (See opinion at 35-42.)

As the Becket Fund pointed out in its brief (in response to the same position taken by Pennsylvania and New Jersey), that reading foreclosing exemptions would force the agencies “to make a binary all-or-nothing choice”: either require all employers, including the Little Sisters of the Poor, to provide contraceptive coverage, or require none to do so. “The better reading of the statute,” the brief argues, “is the one the Obama Administration adopted in 2011 with the original church exemption, and in 2012 with the slightly expanded church exemption, and in 2013 with the ‘accommodation,’ and again in 2014 with the modified ‘accommodation,’ which is that the delegation of authority to HRSA included the authority to balance competing interests over coverage.”

Beetlestone knows that the Obama administration’s own religious exemption would be impermissible under her reading—she called the issue “the elephant in the room” at the hearing—but she chooses to bury that elephant in a footnote (see opinion at 35 n. 20) and thus ducks carefully considering whether her wooden interpretation of the statutory language is sound.

2. On the separate question whether the federal Religious Freedom Restoration Act authorizes or requires the religious exemption, Beetlestone adopts the astounding position that federal bureaucrats are not supposed to give any thought to what RFRA demands. (See opinion at 44-45.) Never mind that RFRA itself directly sets forth the general rule that “Government shall not substantially burden a person’s exercise of religion” and specifically defines the term “government” to “include[] a branch, department, [or] agency … of the United States.”

From the fact that RFRA expressly provides for judicial relief for violations of RFRA, Beetlestone leaps to the wildly mistaken conclusion that RFRA contemplates that administrative agencies should bumble along without taking account of RFRA and should just leave it to the courts to redress any violations of religious liberty in the end. (It would be one thing to maintain that the courts owe no deference to agency interpretations of RFRA, but Beetlestone goes much further to contend that courts have exclusive authority to interpret RFRA: RFRA, she claims, “commit[s] interpretative authority to the courts—not to agencies.” Opinion at 45; see generally 44-45. Her contention is all the odder as it might well be unnecessary to her bottom line.)

3. Beetlestone rules that procedural defects that she previously found in the “interim” rules fatally taint the final rules. But the Obama administration used the same process, with the same supposed defects, to create the underlying contraceptive mandate in the first place, and the effect of her ruling is to re-impose that mandate on objectors. Either final rules can escape the taint of defective interim rules (in which case the new rules are procedurally valid), or they can’t (in which case the contraceptive mandate itself is invalid).

Can it really be that no amount of process—here, formal notice, followed by eleven months of comments, and the administration’s response to those comments—can rescue the final rules from any irregularities that afflicted the interim rules? (To be clear, it might well be, as Beetlestone argues, that Third Circuit precedent requires her ruling; if so, I would not fault her. But it would be beyond bizarre if the matter ends up being resolved against the Trump administration on this ground.)


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