Bench Memos

Law & the Courts

Little Sisters’ Reply Brief

On Wednesday, the Supreme Court will hear oral argument in the challenges brought by the Little Sisters of the Poor and other religious nonprofits against the Obama administration’s so-called “accommodation” to its Obamacare regulatory mandate on contraceptives (including those that might operate as abortifacients).

As I’ve explained before, I believe that straightforward application of the elements of the federal Religious Freedom Restoration Act ought to deliver a slam-dunk victory for the Little Sisters. But the same should have been true in Hobby Lobby, which somehow ended up being only 5-4.

Paul Clement and his team of lawyers from the Becket Fund for Religious Liberty and the Alliance Defending Freedom have written a devastating reply brief. (I’d very much expect that the reply brief of co-petitioners Bishop David A. Zubik and other Catholic entities is also excellent, but in the rush of events I haven’t had time yet to read it.)

Here’s the summary of argument from the Little Sisters’ reply brief (underlining added):

The government’s response brief is a study in misdirection and contradiction. Unable to answer petitioners’ substantial burden argument on its own terms, the government resorts to attacking a strawman, insisting that petitioners are stubbornly objecting to the very act of objecting. But not only have petitioners made abundantly clear that they do not object to objecting; the government ultimately concedes in the final two pages of its brief that its regulatory scheme demands—indeed, by its own telling, necessitates—far more from petitioners than mere notice of their objections (which it of course already has). The government itself thus reveals that it does not offer a simple “opt out.” Indeed, if all the government demanded were notice of an objection, then this litigation would suffice, and the government’s threat to impose massive penalties for failing to provide specific information would be inexplicable.

The government likewise fails to explain why it exempts—not “accommodates,” but truly exempts—some religious employers if compliance via the regulatory mechanism imposes no substantial burden. The government insists that it does so as a matter of administrative grace and “special solicitude” for churches, and that nothing in RFRA requires the exemption. Thus, in the government’s view, it could eliminate the exemption for churches tomorrow. That is astonishing enough, but it fails to grapple with the reality that by granting the exemption the government has already conceded that it does not have a compelling interest in demanding compliance from religious employers who are more likely to hire people who share their religious objections. But the government has no more compelling interest in demanding compliance from petitioners, who share the same statutory entitlement to hire people who share their own faith as the exempted employers.

Nor can the government escape the reality that the mandate’s secular exemptions and the government’s own concessions regarding them doom its least-restrictive means defense. The government claims that asking whatever subset of petitioners’ employees who actually want contraceptive coverage to obtain it through an Exchange would “inflict tangible injury” that cannot be tolerated. But the government itself champions the Exchanges not a dozen pages earlier in its brief as one of several acceptable paths through which the tens of millions of employees whose employers are already exempt can obtain contraceptive coverage. The government simply cannot explain why what it deems sufficient for all the other individuals who lack access to an employer-sponsored plan with contraceptive coverage (whether because of the religious exemption, the grandfathered plans exemption, or the small business exemption) is somehow too burdensome for petitioners’ employees.

In the end, then, this case does not require the Court to choose between the dignity of petitioners’ employees and the religious liberty of petitioners. Indeed, it does not even require the Court to decide whether Congress could impose the contraceptive mandate on all employers, or on all non-religious employers. Congress concluded in the ACA that it was not imperative to apply the preventive services mandate to all employers, even as it demanded immediate compliance with other mandates. And Congress concluded in RFRA that all those whose religious exercise is substantially burdened by the federal government—not just the lucky few favored by the executive—are entitled to an exemption when imposing that burden is not imperative. This Court need do nothing more in this case than honor those congressional judgments. Conscripting nuns, seminaries, and other religious nonprofits to facilitate access to something as obviously religiously sensitive as contraceptives and abortifacients substantially burdens their religious exercise, as even the government implicitly recognizes when it comes to churches. Doing so when Congress itself has concluded that universal compliance is unnecessary is a textbook violation of RFRA.

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