Bench Memos

Fifth Circuit Taken in by HHS Peek-a-Boo

Yesterday a three-judge panel of the Fifth Circuit upheld the so-called “accommodation” offered to religious organizations under the HHS contraception-abortifacient-sterilization mandate, in the face of a Religious Freedom Restoration Act challenge.  The case is East Texas Baptist University v. Burwell, and bundles together a number of appeals involving other institutions (Houston Baptist University, the University of Dallas, Catholic Charities in two Texas dioceses, and intervenor Westminster Theological Seminary, in Pennsylvania).  Judge Jerry Smith, a Reagan appointee, wrote for the unanimous panel, which included Judge James E. Graves, Jr., an Obama appointee, and Judge Thomas M. Reavley, a Carter appointee who took senior status a quarter century ago.

Unfortunately, Judge Smith reasoned his way through the case with an incomprehension of the issues that is matched only by that of Judge Richard Posner of the Seventh Circuit.  The “accommodation” is meant to be a halfway house between the ordinary HHS mandate, which requires employers to contract openly for the objectionable services, and the full exemption from the mandate given to churches themselves.  (The direct mandate was invalidated under RFRA where private, closely held corporations are owned by persons with sincere religious objections to it, in the Hobby Lobby case a year ago.)

It cannot be denied that the “accommodation” requires employers to contract covertly for the provision of the very services to which they may object.  Yet that is just what Judge Smith does deny.  Under HHS regulations, an objecting religious organization either fills out a standard EBSA Form 700 and sends it to HHS and its health insurance company, or notifies HHS by informal means, so long as it identifies all the particulars HHS needs in order to contact the insurance company itself.  The result?  The organization’s employees receive the covered services.  If this is not “facilitating,” in a morally complicit fashion, the exact result to which the organizations object, then the word “facilitating” has no meaning. 

Judge Smith does not see this at all, writing:

Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing or facilitating access to contraceptives. Instead, the acts that violate their faith are those of third parties.

This song and dance really must be retired.  According to Smith, the organizations cannot object to the acts of others with which their mandatory conduct has no connection.  But the connection is obvious, and represents an iron causation.  Because an organization has more than 50 employees, it must provide health coverage to them.  That coverage, provided by whatever insurance provider or “third-party administrator” with which the organization contracts, must include the services imposed by the HHS mandate.  The employees will get just what their employer wishes, for reasons of a sincere religious objection, they were not getting; they will get it by virtue of their employment with that organization; and they will get it because that employer told HHS who they were, what kind of plan they have, and who the insurance provider is.  This is facilitation all the way down.  The employer’s actions from beginning to end are the sine qua non of the mandated coverage.

With no apparent sense of the absurdity of what he writes, Smith goes on to say:

Without the accommodation, the plaintiffs would have to offer a plan that covered contraceptives, so the effect of the government’s communications with the insurers and third-party administrators is to shift the burden to those entities.  Providing the names and contact information facilitates only the plaintiffs’ exemption, not contraceptive coverage.

Remember Hobby Lobby, Judge Smith?  “Without the accommodation,” the plaintiffs here would be in the same situation as the for-profit employers who do not have to offer a plan that covers contraceptives.  As Ed Whelan has explained numerous times, the Court in Hobby Lobby did not bless the so-called “accommodation” as valid under any RFRA challenge (a question not before it in that case).  It used the “accommodation” only as an example to show that there were “less restrictive means” available to the government than imposing the HHS mandate openly on religously objecting employers.  It remained then to be seen whether imposing it on them covertly, as the “accommodation” does, would survive RFRA scrutiny.  Judge Smith writes as though the outcome of the case before him was already signalled by the high court, which is untrue.  It was up to his panel to do an adequate analysis of the burden involved, and he and his colleagues have failed to do it.

And really, could any employer operating in the real world take seriously the claim of Judge Smith that “[p]roviding the names and contact information facilitates only the plaintiffs’ exemption, not contraceptive coverage”?  The purpose of the information is to make the coverage happen.  It is the but-for causation of the transaction.  But for the provision of this information, no coverage would take place.  This is so obvious that one must will oneself to be blind to it.  Judge Smith was up to that task.

Adding to his hit parade of patently obtuse observations, Judge Smith then says the plaintiffs:

must contract with the insurers and third-party administrators to offer a plan, and those entities pay for contraceptives. In the plaintiffs’ view, the insurers and third-party administrators would not do so absent the contracts, so the contracts facilitate the use of contraceptives. 

The plaintiffs misunderstand the role of the contracts. Under the accommodation, the contracts are solely for services to which the plaintiffs do not object; the contracts do not provide for the insurers and third-party administrators to cover contraceptives . . .

Once again it is Judge Smith who has misunderstood something elementary.  The insurance providers are contractually obligated to provide contraceptives to the employees, by virtue of their contracts with the employers.  Again there is but-for causation that is perfectly obvious here.  If East Texas Baptist University has a contract now with Big Health Insurance, then BHI is contractually obliged—thanks to the strictures of the HHS mandate, which require this as part of the coverage—to provide no-cost contraception to the university’s employees.  If the university changes providers, and goes with Gigantic Health Insurance, then the contractual obligation henceforth lies upon GHI.  The common fulcrum without which no HHS mandate coverage would occur is the employment of the covered persons by the university, and its undertaking to provide them coverage.  QED, Judge Smith.  The administration may like to play a game of peek-a-boo, saying “now you see the coverage” in the insurance information given to employees, and “now you don’t” in the “contract” provided to the employer.  But there is no reason for an intelligent jurist to be taken in by this subterfuge of keeping two sets of books.

Sooner or later, either the Supreme Court will step in to right this wrong, or the next administration will rescind the HHS mandate.  But the change can’t come too soon.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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