Yesterday the D.C. Circuit denied en banc review of a panel decision that rejected a challenge to the HHS mandate accommodation brought by the Catholic archbishop of Washington, D.C., and nonprofit organizations affiliated with the Catholic church (including the lead named plaintiff, Priests for Life). The vote against en banc review apparently was 6-3. (The caption of the order identifies only Judge Janice Rogers Brown and Judge Brett Kavanaugh as voting to grant the petition, but Judge Karen Henderson joins Brown’s opinion dissenting from the denial.)
The order denying en banc review is accompanied by three opinions concerning the denial: an opinion concurring in the denial by Judge Cornelia Pillard, author of the panel decision, and separate lengthy dissents by Brown and Kavanaugh (which Pillard acknowledges to be “two thoughtful opinions”).
As Brown spells out, the Catholic plaintiffs “identify at least two acts” that the HHS mandate, with the accommodation, compel them to perform in violation of their religious beliefs: (1) hiring and maintaining a contractual relationship with a company (insurer or third-party administrator) that will provide contraceptive coverage to those enrolled in their health plans, and (2) submitting the self-certification that they object to providing such coverage itself. But Pillard’s opinion is limited entirely to the second act, the self-certification.
Pillard argues that there is no “causal connection at all between employers’ opt-out notice [the self-certification] and employees’ access to contraception.” But even if that were true, it doesn’t speak at all to the fact that there is a clear causal connection between, on the one hand, an employer’s being required to maintain a contractual relationship with a company that will provide contraceptive coverage to its employees when the employer has religious objections to facilitating such coverage and, on the other, the employees’ receiving such coverage. Pillard is wrong, in other words, to contend that “it is the mandate on insurers that causes Plaintiffs’ employees to receive contraceptive coverage,” for it is the obligation on the Catholic plaintiffs to contract with such an insurer that facilitates the coverage for their employees. (The churches and other houses of worship that are exempt from the HHS mandate are under no such obligation. As I discussed in point 4 of “Posner’s Pottage,” the accommodation thus does not give an employer that submits the self-certification the same protections that exempt entities have.)
Both Brown and Kavanaugh also dispute Pillard on how the self-certification operates and on its legal significance to the substantial-burden inquiry. (As Brown points out, Justice Sotomayor’s dissent from the Wheaton College order states that “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification” (emphasis added). )
In the framing of her opinion, Brown also powerfully argues that secular progressivism has become the oppressive new orthodoxy:
There was once a time when the church was the state and the church as the state embodied all hope of human well-being. To challenge the church was to undermine civilization. Thus, the imposition of orthodoxy was deemed necessary, and dissent, which amounted to heresy, was met with coercion and violence….
In a sense the government now fills the role formerly occupied by the church, embodying the hope of human well-being…. Consequently, orthodoxy has been rehabilitated, and dissent from the government’s determinations may be quelled through coercion—onerous fines or banishment from commerce and the public square.
As Brown points out, the “refuge” that religious adherents may still seek under the federal Religious Freedom Restoration Act means that “we do not find ourselves full circle quite yet.” But when the Catholic archbishop of Washington, Priests for Life, and other Catholic nonprofits are compelled, under the threat of massive fines, to facilitate the provision of contraceptives (including those that operate as abortifacients), the circle is closing fast and tight—like a noose.