Below is the summary of argument (underlining added) from the amicus brief that the Ethics and Public Policy Center (which I head) filed yesterday in support of the Little Sisters of the Poor and the other religious nonprofits who are challenging the legality of the Obama administration’s so-called “accommodation” on its HHS contraceptive mandate. (The D.C. Circuit opinion, by Obama appointee, and leftist extremist, Cornelia Pillard eagerly embraced the Obama administration’s flimsy arguments, so in exposing the flaws in the D.C. Circuit’s holding, EPPC’s amicus brief refutes the arguments that the Obama administration will presumably make in its forthcoming brief in the Supreme Court.)
In holding that the challenged regulations here were the least restrictive means of furthering a compelling governmental interest, the D.C. Circuit employed overly lenient and legally erroneous standards for applying RFRA’s strict-scrutiny test. The D.C. Circuit’s approach, if upheld here, would establish a dangerous precedent that would be applicable in all strict-scrutiny cases, thereby seriously threatening all constitutional rights.
1. In articulating the relevant “compelling governmental interest,” the D.C. Circuit rested on a legally flawed approach that erroneously defined the asserted compelling interest in terms of the particular regulatory features selected by the Government. This bootstrap approach to strict scrutiny is contrary to precedent and common sense.
a. The first element of RFRA’s strict-scrutiny test requires the Government to “demonstrate that application of the burden [on religious exercise] to the person … is in furtherance of a compelling governmental interest.” 42 U.S.C. § 2000bb– 1(b)(1). This element, in turn, imposes a two-part burden on the Government.
First, the Government must identify a governmental interest that is “compelling.” Only “‘paramount interests’” that protect against “‘the gravest abuses’” may be deemed to be “compelling.” Sherbert v. Verner, 374 U.S. 398, 406 (1963) (citation omitted); see also Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (“interests of the highest order”). Put another way, only those interests that are so weighty that they would justify the derogation of constitutional rights are “compelling.” Moreover, this Court has repeatedly held that “a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 433 (2006) (citations and internal quotation marks omitted).
Second, once a properly defined compelling interest has been shown, RFRA requires the Government to prove that the application of the burden to “‘the particular claimant whose sincere exercise of religion is being substantially burdened’” is in furtherance of that compelling interest. Hobby Lobby, 134 S. Ct. at 2779 (quoting O Centro, 546 U.S. at 430-31) (emphasis added). Thus, the Government must demonstrate that “‘granting specific exemptions to [these] particular religious claimants’” would likely produce the actual “harm” that the Government has a compelling interest in preventing. Id. (citation omitted).
b. Under these standards, the D.C. Circuit erred in holding that the Government has a compelling interest in “provid[ing] seamless coverage of contraceptive services for women,” i.e., “provid[ing] cost-free contraceptive coverage” in a manner that “remove[s] administrative and logistical obstacles to accessing contraceptive care.” Pet. App., No. 14-1505, at 56a (emphasis added).
The asserted interest in “seamless coverage” is improperly framed in the granular terms of the Government’s chosen means of accomplishing its ultimate objectives of promoting women’s health and equality. The whole point of the strict-scrutiny test is to “assess the fit between the stated governmental objective and the means selected to achieve that objective.” McCutcheon v. FEC, 134 S. Ct. 1434, 1445 (2014) (emphasis added). Under the jury-rigged approach adopted by the D.C. Circuit, the essential features of the Government’s chosen means instead are incorporated into the definition of the compelling interest itself, with the foreordained consequence that the regulation then will be perfectly tailored to that rigged definition of the compelling interest. The D.C. Circuit’s approach thus improperly collapses what is supposed to be a demanding and highly constrained multi-step inquiry into a unitary and wholly subjective question for a judge to answer: “Do I think the regulation is very important?”
The D.C. Circuit’s approach contravenes settled precedent. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), this Court held that strict scrutiny does not permit the asserted governmental interest to be defined in terms that amount to “a mere restatement of the prohibition itself,” as opposed to a “justification for it.” Id. at 538 n.* (emphasis added); see also id. at 546-47; O Centro, 546 U.S. at 430 (rejecting Government’s comparable bootstrap argument that sought to define the relevant compelling interest in terms of “the Controlled Substances Act itself”). The D.C. Circuit’s flawed approach to strict scrutiny, if upheld, would threaten all constitutional rights, because “watering it down here would subvert its rigor in the other fields where it is applied.” Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 888 (1990).
c. Once the D.C. Circuit’s improper bootstrap approach is set aside, it is clear that the Government failed to carry its burden under RFRA’s “compelling governmental interest” prong.
The Government has a compelling interest in avoiding “substantial health risks” to the public. See Church of the Lukumi, 508 U.S. at 545; see also Hobby Lobby, 134 S. Ct. at 2786 (Kennedy, J., concurring). But the Government failed to present evidence to show that the particular burden it seeks to impose on Petitioners’ religious exercise would eliminate a sufficiently significant level of risk to public health that the Government has a compelling interest in avoiding, especially given that the Government has created extensive exemptions that collectively present higher levels of such claimed risk. O Centro, 546 U.S. at 433 (“a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited”) (citations and internal quotation marks omitted).
2. The second element of RFRA’s strict-scrutiny analysis requires the Government to “demonstrate that application of the burden to the person … is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b)(2) (emphasis added). This test is “exceptionally demanding,” Hobby Lobby, 134 S. Ct. at 2780, and the Government has not carried its burden of proof on this issue. Here, there are at least three alternatives that are less restrictive of religious liberty.
a. First, the Government could simply expand its existing exemption from the contraceptive mandate for “religious employers” to cover all religious employers. The D.C. Circuit rejected any such alternative on the ground that, “to be effective,” a proposed less restrictive alternative must ensure the provision of coverage “to all women who want it.” Pet. App., No. 14-1505, at 68a (emphasis added). This reasoning fails because the Government already tolerates a vastly underinclusive system in which (due to grandfathering and the existing religious-employer exemption) very large numbers of employees are not guaranteed such coverage.
The D.C. Circuit thus erred in applying a legally flawed zero-tolerance approach under which any diminution in the number of persons who are provided contraceptive coverage is, without more, sufficient to reject a proposed alternative. The only thing “strict” about such scrutiny is the severity it applies to proposed alternatives, rather than to the religion-burdening means the Government favors. The D.C. Circuit’s approach contravenes this Court’s precedent, which has held that the Government “does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2741 n.9 (2011) (“some gap in compliance is unavoidable”).
b. A second less restrictive alternative would be for the Government to provide or subsidize, on the exchanges established under the Act, a newly established supplemental policy for contraceptive coverage. The D.C. Circuit rejected this alternative, concluding that it would “deter women from accessing contraception.” Pet. App., No. 14-1505, at 69a. But the record does not support these highly questionable and speculative assertions, which the Government had the burden to establish with evidence.
c. A third alternative would be for the Government to rely, not on the exchanges, but on a more direct system of assuming the cost of contraceptives. Hobby Lobby, 134 S. Ct. at 2780 (describing this as the “most straightforward way”). For example, the Government could simply instruct pharmacies that, if a customer’s employer-provided policy excludes contraceptive coverage, the Government will directly reimburse the cost of prescription contraceptives to the pharmacy. From the perspective of the employee, the result of such an arrangement is functionally no different than if the prescription contraceptive coverage had been provided by the employer—thereby eliminating the Government’s concern about imposing additional logistical steps on the employee. But from the perspective of the employer, this approach completely separates the employer and the employer’s health plan from the provision of contraceptives in a way that the Government’s current so-called “accommodation” does not.