Bench Memos

The Government’s Zubik Supplemental Reply Brief: What a Mess

The government’s long, ill-conceived war against the Little Sisters of the Poor seems finally to be drawing to an ignominious close. Ed Whelan has discussed the Supreme Court’s supplemental briefing order before, and now we have the Department of Justice’s latest filing, its supplemental reply brief, in hand.

The brief reads as if the Department of Justice anticipates a loss and is already in the “anger” portion of the four stages of grief as it lashes out at the Little Sisters for daring to question the government’s contraceptive distribution scheme. Anger hasn’t improved the government’s accuracy, though, so let’s catalog some of its most egregious errors.

1. Apparently sensing from oral argument that it has already lost the substantial burden issue, the government admits something crucial in its latest briefing: Its scheme involves taking over the Little Sisters’ plan to achieve its objectives. In its opening supplemental brief (p. 17) the government clearly admitted that it required a “plan instrument” in order to make its jerry-rigged system work.  That is very important, because it confirms beyond all doubt that the petitioners have been right all along that the government was trying to hijack their plans (something which the government has denied up until now).

If the government isn’t hijacking the nuns’ plans, it makes no sense at all to argue (as the government does) that “[t]here is no mechanism for requiring TPAs to provide separate contraceptive coverage without a plan instrument[.]” In the cases where the government won in the appeals courts below, that was the reason the government gave to explain why the Sisters and other religious plaintiffs were simply wrong to think that their plans were being used. Now at the Supreme Court – and in post-oral argument supplemental briefing, no less – the government is running away from its substantial burden argument. At this stage, the government desperately wants (and, in its warped view, needs) to hijack the health plans of the Little Sisters and other religious groups.

2. In response to the nuns’ brief, the government claims (p. 8 n. 6) that the IRS might face criminal penalties for using or disclosing already-filed tax information about employees to extend the Supreme Court’s proposed solution to self-insured religious organizations. First, this is little more than crocodile tears since, as I pointed out in my amicus brief outlining White House emails obtained through FOIA, the White House itself requested IRS data that would help it target specific Catholic religious organizations to create the gerrymandered contraceptive scheme. The government can hardly complain about doing publicly (and legally) what it has already done (illegally) in secret.

Second, the Little Sisters suggested that the IRS use taxpayer information to contact the same taxpayers about a new government benefit, i.e., a revised contraceptive entitlement. I’m no tax lawyer, but I doubt that this qualifies as “disclosure” under federal law. Even if it did, the nondisclosure law the government cites already allows HHS to use taxpayer information to administer programs under the ACA. (Take a look at 26 U.S.C. § 6103(l)(21) for yourself.) The government’s response to this reasonable proposal is a microcosm of their entire brief, and it’s the opposite of the famous Motown song: Ain’t no molehill low enough to doom the Little Sisters.    

3. Those FOIA records reveal another problem that also is repeated in yesterday’s filing: the government’s disturbing obsession with dissident religious organizations. As my amicus brief showed (p. 23-27), internal White House emails showed a concerted official effort to deliberately ensure that specific Catholic institutions would not receive the same exemption given to churches. And yesterday’s brief shows the government obsessing about what it says are “tens of thousands” of religious group beneficiaries. But the government wasn’t terribly worried about at least 100 million employees described in its prior brief (pp. 62-65) that aren’t on plans covered by the contraceptive mandate at all. Apparently the government is happy to ignore millions of Americans on grandfathered plans like Exxon’s and Visa’s while it obsesses for years about the (perhaps) thousands of employees who freely choose to work for religious organizations like the Little Sisters.

4. In a remarkably misleading statement, the government says (p. 7) that the religious plaintiffs are refusing to tell their own insurers that, based on their faith, they do not provide coverage for contraceptives. But these religious groups are not only willing to do that, they’ve been doing it on their own for decades as an everyday part of providing conscience-compliant health plans. And that’s how accommodations for contraceptive coverage requirements in Missouri and West Virginia operated for years before the ACA. Under those state systems, the employer would tell its insurance company to exclude the contraceptive coverage, and the insurance company independently handles the rest. The only thing the religious plaintiffs objected to (and still object to) was helping the government hijack their plans to make them serve as conduit for contraceptives. And with the Supreme Court’s proposal, such hijacking won’t be necessary.

5. The Administration also can’t keep its story straight. Yesterday’s brief says it’s “startling” to think that the Little Sisters can be “exempted without notifying anyone.” (The scare italics are in the original.) But the government already provides a no-notice exemption system for churches and other favored religious groups. Moreover, other civil rights laws (like Title VII) don’t set up a registry of exempted religious groups. It is simply not credible to claim that a no-notice system is some sort of revolutionary departure.

6. Elsewhere, the government doth protest too much. It treats the Supreme Court’s proposal as an abandonment of practicality, when in fact the government agrees with all but two particulars. First, it complains that contraceptives would be provided via a separate contraceptive-only policy instead of using the nuns’ policy. But the religious groups said in their brief (pp. 4-5) that they are open to any arrangement between an employee and a third party that would be truly separate. The government’s response isn’t “yes, we can,” it’s “no, we can’t.”

Second, in its ten-page brief, the government never once acknowledges an inconvenient truth: The federal government already provides standalone family planning coverage via Medicaid. That is a glaring omission – the petitioners raised and discussed the program in their opening supplemental brief (p. 23, see also p. 9) – but the government fails to respond and instead tells the Court that such policies are impossible.  Indeed, as the government grudgingly admits, it was the first to propose a contraceptive-only policy. If the idea was so terrible, so impossible to achieve, why did the government suggest it in the first place?

Moreover, mid-sniffle, the government conceded that it could treat contraceptives as a stand-alone benefit, just as it does for dental and vision benefits—but that it decided not to because prominent insurance companies “questioned [its] authority” (p. 4, n. 3) to order them to provide contraceptive coverage cost-free. This is just too much: The same agency that has put the Little Sisters through three years of litigation and two trips to the Supreme Court and still won’t give an inch backed down after a couple of strongly-worded letters from Big Insurance? Please.

7. The prize for the claim with the most chutzpah goes to the Administration’s argument that state regulators would not allow contraceptive-only policies. While I and federalism both wish this Administration cared even a little bit about state law, it’s simply bizarre for the Administration to pretend that possible preemption of state law gives it pause, especially since the actual text of the ACA already gives the government full authority to overrule contrary state law. Oh, and the petitioners cited that statute in footnote 4 of their first supplemental brief, so the government has no excuse for missing it.

8. Next the government complains that the Supreme Court’s solution would require women to opt into a contraceptive-only plan from the same insurer instead of being automatically forced into the plan. But why wouldn’t the Administration support women’s freedom to choose whether they want to participate in such a plan in the first place? Talk about condescending to women. Not to mention that a separate enrollment process is necessary for the coverage of contraception to actually be separate.

9. The government also wrongly says “several” petitioners were formerly morally opposed to what they’re now accepting. But the government offers only one citation to support its contention (p. 3, to JA511) and that actually proves the opposite: the diocese in question opposed a scheme that made contraception an “automatic” add-on to the diocese’s plan and didn’t give women the “option” to choose. And that’s precisely what the religious groups are saying now.

In the end, the government is finally admitting – because it has to – that it has other ways to achieve its goals without forcing unwilling nuns to help out. And by conceding most of its case away, all that is left is for the Court to put the rest out of its misery.

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