Bench Memos

Law & the Courts

Supplemental Briefs in Little Sisters Case

Here’s the supplemental brief filed yesterday by the Little Sisters of the Poor and the other religious nonprofits who are challenging the so-called accommodation to the HHS contraceptive mandate. And here’s the supplemental brief filed by the Obama administration. Reply briefs are due on April 20.

For now, I’ll just quote the summary of argument in each brief. (For ease of online reading, I add some paragraph breaks.) Here’s the Little Sisters’ (emphasis added):

In its supplemental briefing order, this Court has asked the parties to address whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The answer to that question is clear and simple: Yes. There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs. Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed.

This Court’s supplemental briefing order focused on “[p]etitioners with insured plans.” Of course, not every petitioner purchases insurance from a commercial insurance company, as many petitioners self-insure or use a self-insured church plan. But less restrictive alternatives involving commercial insurance companies are available for those petitioners as well.

If commercial insurance companies were to offer truly separate contraceptive-only policies along the lines envisioned in this Court’s order, then the employees of petitioners who self-insure or use self-insured church plans could enroll in those separate contraceptive-only insurance policies as well. Those policies would obviously be separate from the coverage provided by the self-insured employers or the church plans, and petitioners’ employees would be free to enroll in those policies if they choose. Accordingly, among the many less restrictive alternatives available to the government is to require or incentivize commercial insurance companies to make separate contraceptive coverage plans (of the kind contemplated by the Court’s order for petitioners with insured plans) available to the employees of petitioners that self-insure or use self-insured church plans, without requiring petitioners to facilitate that process or threatening them with ruinous fines unless they do so.

All of these less restrictive alternatives—in addition to those outlined in petitioners’ earlier briefing—underscore that the government’s current scheme violates RFRA. There is no reason for the government to insist, on pain of massive penalties, that petitioners abandon their sincerely held religious beliefs when the government can achieve its ends through other means. The substantial burden that the government’s current arrangement undoubtedly places on petitioners’ religious exercise thus is simply not the “least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. §2000bb-1(b)(2).

Here’s the summary (citations to Court’s order omitted) from the Obama administration’s brief (after two opening paragraphs touting the “comprehensive administrative process”—the series of jerks and evasions—that yielded the so-called accommodation):

This Court’s order of March 29, 2016, directed the parties to address alternative procedures by which “contraceptive coverage may be obtained by petitioners’ employees, through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage.” In addressing only “[p]etitioners with insured plans,” the order correctly anticipates that the alternative it posits would not work for the many employers with self-insured plans, which use third-party administrators (TPAs) rather than insurers, and which make up a substantial portion of the employers that have invoked the accommodation.

For employers with insured plans, the Court’s order describes an arrangement very similar to the existing accommodation. The accommodation already relieves petitioners of any obligation to provide contraceptive coverage and instead requires insurers to provide coverage separately. The only difference is the way the accommodation is invoked. Currently, an employer that chooses to opt out by notifying its insurer (rather than HHS) must use a written form certifying its religious objection and eligibility for the accommodation. The Court’s order posits an alternative procedure in which the employer could opt out by asking an insurer for a policy that excluded contraceptives to which it objects. That request would not need to take any particular form, but the employer and the insurer would be in the same position as after a self-certification: The employer’s obligation to provide contraceptive coverage would be extinguished, and the insurer would instead be required to provide the coverage separately.

Because insurers have an independent statutory obligation to provide contraceptive coverage, the accommodation for employers with insured plans could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation. The self-certification process was adopted with broad support from commenters because it provides clarity and certainty for all parties whose rights and duties are affected by the accommodation, including the objecting employers. A requirement that an employer state in writing its religious objection and eligibility for an exemption is a minimally intrusive process, and petitioners have never suggested an alternative arrangement like the one posited in the Court’s order. The Court thus should not require any change to the self-certification process.

If, however, the Court determines that the existing process for invoking the accommodation must be modified in some respect in light of petitioners’ religious objections, it should make clear that the government may continue to require the relevant insurers to provide separate contraceptive coverage to petitioners’ employees in accordance with the other provisions of the current regulations. A decision requiring a modification to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.


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