Bench Memos

Judge Posner’s Dog Regurgitates

Predictably, given his uninformed and ill-mannered behavior in last week’s oral argument in Notre Dame v. Sebelius, Judge Richard Posner has now delivered himself of an ill-judged opinion in the case.  The first unfortunate feature of it is that it speaks for a majority of his three-judge panel of the Seventh Circuit; Judge David Hamilton, who seemed last week to at least comprehend the university’s arguments, joined him, while Judge Joel Flaum filed a cogent dissent.

The second unfortunate feature of Judge Posner’s opinion is that he appeared to learn nothing from the clear and skillful argument of Notre Dame’s counsel last week.  But then the judge was not truly interested in listening to him, as anyone who listens to the oral argument’s audio recording can discover for himself.

And this leads to the third unfortunate feature of Posner’s opinion, that he cannot even competently describe the contours of the case he is deciding.  Last week, Posner expressed the view that, no matter what Notre Dame did, whether or not it filled out the “self-certification” form the the government requires of religious organizations seeking an “accommodation,” its third-party health insurance administrators Meritain and Aetna (the university self-insures and these companies administer the employee and student plans, respectively) would provide contraceptive services to its employees and students anyway.  Hence there could be no “substantial burden” on Notre Dame in just filling out the form.  The university’s counsel pointed out that this was not so, and cited the relevant regulation, which “states that the self-certification will be treated as a designation of the third-party administrator as plan administrator and claims administrator for contraceptive benefits, pursuant to section 316, and shall supersede any earlier designation.”

This information silenced Posner for a while during the oral argument, but in his opinion he persists in his original error, which requires him to misread the relevant law.  Notre Dame, Posner said, claims

that by filling out the form and sending it to the companies it “triggers” their coverage of the contraception costs and students, and that this makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine . . .

Posner asserts that this is erroneous, and writes:

Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.

Suppose the situation were as Posner describes.  Then it would certainly pass all understanding why the government has a compelling interest in forcing Notre Dame to fill out a form that has absolutely no effect on the actions of its third-party administrator vis-à-vis its insured employees, dependents, and students.  And one wonders whether Posner has noticed that, according to his own account, Aetna and Meritainby virtue of their contract with Notre Dame, would be obliged to supply the contraception.  Not Kaiser, not Blue Cross, but Aetna and Meritain—“unless and until their contractual relation with Notre Dame terminated.”

Posner continues:

Notre Dame says no—that had it not filled out the form, Meritain and Aetna wouldn’t have been authorized to provide contraceptive services because neither would have been a “plan administrator” under [the relevant law and regulations].

The regulation says, of the form Notre Dame objects to signing, that it “shall be treated as a designation of the third party administrator [TPA] as the plan administrator . .  for any contraceptive services.”  Posner reads it this way:

Treated and designated by whom?  By the government.  The delivery of a copy of the form to Meritain reminds it of an obligation that law, not the university, imposes on it—the obligation to pick up the ball if Notre Dame decides, as is its right, to drop it. . . . Meritain must provide the services no matter what; signing the form simply shifts the financial burden from the university to the government.

This is a plain misreading of the HHS mandate’s text.  The mandate imposes no stand-alone obligation whatsoever on a TPA like Meritain, which, as far as federal law is concerned, has the option of withdrawing from its contractual relationship with the university.  If it chooses to stay in that contractual relationship, it has a contingent obligation to provide the contraceptive services once Notre Dame sends it the form—not before, and not otherwise.  If Notre Dame did not send the form, and did not otherwise undertake to pay for or provide the contraception itself or through Meritain, the university would be liable to pay large fines—because its employees would not be getting the contraception!  That’s the predicate of the fines—the failure of the employees to receive access to the HHS-mandated contraception.  If the employees were to receive them anyway, as Posner seems to think the government has required, then what is all the hubbub over the signing of the form or the potential imposition of fines?  It is not “the government” that treats or designates someone to bear the obligation of providing the contraception.  It’s the employer, in this case Notre Dame.

Judge Flaum’s dissent unmasks, moreover, the tacit premise of Judge Posner’s majority opinion, that he believes he can adjudicate the substantive meaning of other people’s religious beliefs.  Noting that “the form flatly states that it is ‘an instrument under which the plan is operated,” Judge Flaum continues:

Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that delivers contraceptive products and services to its employees and students.

The majority has trouble accepting this position. . . . Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith.  Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take.  So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.

Judge Flaum is actually too kind to Judge Posner, who has both undertaken to second-guess Catholic theology and misread the law and the facts in the case.  But noting that the university has stated it would have no trouble with a “single-payer” system in which the government undertook all provision of contraception and involved Notre Dame not at all—a statement Posner wrongly takes as some kind of telling concession—Flaum writes:

But the self-certification requirement is different.  It is one thing for the government to take independent action.  It is quite another for the government to “force[]” the university “to cooperate actively with the Government by themselves providing” the EBSA Form 700—a form that, in Notre Dame’s view, endorses the provision of contraceptives to its students and employees.

Posner’s incompetent opinion can be usefully contrasted with another he cites and sneers at, but which has everything Posner’s opinion lacks: accuracy, sound reasoning, and respect for religious freedom.  That is District Judge Lee Rosenthal’s opinion in East Texas Baptist University v. Sebelius on December 27.  Here’s a sample of how to understand the HHS mandate’s so-called “accommodation” properly:

The plaintiffs have demonstrated that the mandate and accommodation will compel them to engage in an affirmative act and that they find this act — their own act — to be religiously offensive. That act is completing and providing to their issuer or TPA the self-certification forms. The act of self-certification does more than simply state the organization’s religious objection to covering or paying for its employees to get emergency contraception. The self-certification act designates the organization’s TPA as the TPA for contraception coverage. The act tells the TPA or issuer that it must provide the organization’s employees coverage that gives those employees free access to emergency contractive devices and products. That act tells the TPA or issuer that it must notify the employees of that benefit. . . .

The purpose of the form is to enable the provision of the very contraceptive services to the organization’s employees that the organization finds abhorrent. . . .

[T]he plaintiffs’ self-certification and the group health plans they put into place are necessary to their employees’ obtaining the free access to the contraceptives that the plaintiffs find religiously abhorrent. The plaintiffs’ acts are not sufficient for their employees to achieve this access, but the plaintiffs’ acts are necessary to this result, and that is enough for RFRA.

Even accepting that the government has succeeded in preventing any payment by the religious organization for the religiously offensive devices, there is a causal link between the acts the plaintiffs must do under the accommodation and the provision of contraceptive devices and products to employees on a no-cost-sharing basis.

Anyone still tempted, by Posner’s inflated reputation, to credit him with competence in this case, should consider the following question.  If Notre Dame, at the conclusion of a contract’s terms, were to change third-party administrators, switching from Meritain to some other company, what would become of Meritain’s obligation to provide contraception to Notre Dame employees?  Poof! it would vanish, and the successor company would assume the obligations of the role of TPA.  It follows, therefore, that it is because of Notre Dame’s relationship with its TPA that that company, and no other, is the one the government mandates as having a relationship with Notre Dame’s employees as the provider of contraceptive services.  This, and this alone, is enough to violate a religious institution’s conscientious scruples about the so-called “accommodation.”  And as Judge Rosenthal said in the East Texas Baptist case, in words echoed by Judge Flaum in his Notre Dame dissent, “RFRA case law does not allow a court to substitute its judgment on whether the act the plaintiffs are required or forbidden to perform is or is not religiously offensive.”

Given the trend of these cases, and the sound reasoning presented by jurists like Judges Flaum and Rosenthal, I’d say Judge Posner’s fragrant majority opinion for the Seventh Circuit panel is ripe for reversal.


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