Bench Memos

Incoherent Ruling in Favor of HHS Mandate in Illinois

In five of seven cases, the owners of for-profit businesses have obtained injunctive relief against the HHS mandate. Of the two cases that have gone wrong, I’ve already discussed the Tenth Circuit’s mess-up yesterday in the Hobby Lobby case. Here I’ll briefly address the adverse ruling a week ago in Korte v. U.S. Dep’t of HHS.

Federal district judge Michael J. Reagan has difficulty getting anything right. He somehow even confuses HHS with Congress, as he wrongly asserts (slip op. at 2) that it was “Congress” that “decid[ed] to include a contraception coverage mandate.”

On one page, Reagan states that he “does not need to specifically decide whether a secular, for-profit corporation can exercise religion.” But three pages later he asserts that it can’t. Just four pages after that he labels the corporate form “dispositive” of Cyril Korte’s and Jane Korte’s Religious Freedom Restoration Act claim. But three pages later, in the course of an analysis that would seem to render the corporate form irrelevant, he asserts merely that “it cannot be ignored.”  (See slip op. at 10, 13, 17, 20.)

This jumble of propositions would actually seem to be the core of Reagan’s ruling:

[1] The HHS mandate “will not be directly, primarily and fundamentally responsible for rendering the Kortes’ adversity to [contraceptives] and abortifacients effectively impracticable” because [2] “[a]ny inference of support for contraception stemming from complying with the … mandate is a de minimus [sic] burden.” [3] The Kortes’ objection “presupposes that an insured will actually use the contraception coverage.” Even if there’s a substantial likelihood of that, the “connection between the [mandate] and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden.” (Slip op. at 20.)

To briefly refute each of these propositions:

1. It’s of course the HHS mandate that “directly, primarily, and fundamentally” requires the Kortes to provide coverage for contraceptives and abortifacients. (I confess that I don’t know what it means to “render” their “adversity” “effectively impracticable.”)

2. The relevant question isn’t whether others will draw the “inference” that the Kortes “support” contraception. It’s whether they have religiously based moral convictions against facilitating the use of contraceptives or abortifacients. There is nothing de minimis about a fine of $2000 per employee per year.

3. As Judge Reggie B. Walton explained last month in Tyndale House Publishers v. Sebelius, in rejecting this same line of misreasoning: “Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties. And even if this burden could be characterized as ‘indirect,’ the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden.”


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