Bench Memos

Feeble Defense of HHS Mandate

A badly confused TPM article concludes that the lawsuits challenging the HHS contraception mandate “have shaky legal merit.” Let’s consider the flaws in the article:

1. The article maintains that the original HHS mandate has been “tweaked” to ensure that “religious nonprofits like universities and hospitals do not need to pay for free birth control coverage in their employee health plans, and can pass the cost on to the insurance company.” How much confusion can be packed into one sentence?

For starters, the original HHS mandate was formalized as a final rule on the very day that the White House announced its intention to tweak the rule at some point down the road. No revision has yet been made (and only a naïf would fail to recognize that the White House’s primary goal was to defuse the controversy until after the election).

Further, it’s far from clear what the proposed revision would mean in practice. How it is that the employer could “pass the cost on to the insurance company”—the same entity that determines the premium that the employer pays—is quite a mystery. Nor is it evident what legal authority the Obama administration would have to impose such an obligation.

Still further, the many entities that self-insure, like EWTN (one of the plaintiffs challenging the HHS mandate), couldn’t possibly benefit from any such tweak.

Also, there is no reason to think that the proposed tweak materially affects the religious objection that the employers have to facilitating the provision of contraceptives, abortifacients, and sterilization services to their employees. Exactly as with the original mandate, once an employer selects an insurance company to provide coverage to its employees, that insurance company will provide coverage of objectionable services to those employees. The employer who objects on religious grounds to providing coverage of those services is still being compelled to do exactly that.

Even if the tweak were meaningful, it would extend only to some as-yet-undefined category of nonprofit religious organizations. It does nothing to respect the religious freedom of other employers.

2. The article relies heavily on two misguided authorities.

a. Jessica Arons of the Center for American Progress contends, “Courts in New York and California have already upheld the exemption that was initially adopted by the Administration.” I gather that Arons is contending that the original HHS mandate is substantively identical to state mandates that courts in New York and California have upheld. That claim isn’t correct: In both New York and California, the laws applied only to employers who offered coverage for prescription drugs; they didn’t apply to self-insured plans or ERISA plans; and they didn’t extend to sterilization services.

But even if Arons’s claim were correct, it misses the larger point that the protections of the federal Religious Freedom Restoration Act didn’t apply against those state mandates (nor did either state have a state version of RFRA). So those cases simply don’t speak at all against the overwhelming argument that the HHS mandate, in either its original or to-be-tweaked version, violates RFRA. There is no serious argument that the federal government needs to dragoon objecting religious employers to be the vehicle for what the federal government could provide directly.

(It’s also not at all clear that the state laws exempted a broad swath of employers for secular reasons. As I’ve explained, it’s that feature that means that the HHS mandate is not neutral and generally applicable for purposes of deference under Employment Division v. Smith. So it’s likewise not clear that the state courts’ Free Exercise rulings bear meaningfully on the Free Exercise challenge to the HHS mandate.)

b. The article also quotes law professor Adam Winkler (whose—I’ll be gentle—subpar commentary I have encountered before) for three propositions.

First, Winkler asserts that “[t]his lawsuit is inspired by politics and nothing more.” It’s unclear in context which of the lawsuits Winkler is referring to, but I wonder what special insight he has into the subjective motivations of any of the plaintiffs. Or is it Winkler’s own ideological blinders that make him believe that no one could have genuine religious objections to being subjected to the HHS mandate?

Second, Winkler contends that the lawsuit (again, it’s unclear which one) had “little chance of success” “[e]ven under the previously announced rule” (by which Winkler evidently means to refer to the rule that has now been finalized). Perhaps it’s the reporter’s fault, but it’s impossible to discern what Winkler’s substantive critique is.

Third, Winkler claims that the “crux of Ave Maria [University]’s complaint is that they will have to pay more for health insurance because of this law,” and he tries to build an argument-by-analogy on that premise. But his premise is clearly mistaken, as a review of Ave Maria’s actual complaint readily reveals. Ave Maria contends that its “sincere religious beliefs forbid it from … paying for … or otherwise supporting contraception, sterilization, or abortion” and that the HHS mandate “forc[es] the University to fund, promote, and assist others to acquire services which it believes involve gravely immoral practices.” Nothing in its complaint turns merely on “pay[ing] more for health insurance,” and, indeed, its objections would be entirely the same if the HHS mandate were accompanied by a financial subsidy that led the university to pay less for health insurance. It’s Winkler’s own incompetent or dishonest misrepresentation of Ave Maria’s complaint that is (to use Winkler’s misplaced assessment) “nonsense.”


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