Bench Memos

Law & the Courts

Guide to Zubik/Little Sisters Merits Briefs—Part 2 (The Basics of the Accommodation)

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Much of the dispute over the imposition of the HHS contraceptive mandate on the Little Sisters of the Poor and other religious nonprofits turns on contested accounts of what the government is requiring of them—and what it is excusing others from doing. The Little Sisters brief (pp. 9-24) and the Zubik brief (pp. 6-14) powerfully dispel the confusion that the government has sown. Among their points:

1. Lots of employers are entirely exempt from the HHS mandate. That’s true of the nearly 1/3 of large employers who operate “grandfathered” health plans and who employ tens of millions of Americans. It’s also true of small employers—those with fewer than 50 full-time employees—who need not provide health insurance at all. And it’s true of the small subset of “religious employers” for whom (unlike petitioners) the government has created an actual exemption from the HHS mandate.

2. The exemption for the small subset of “religious employers” shows—I’m inserting my own commentary here—how comically inept the accommodation for other religious nonprofits is. The exemption concocted by the HHS bureaucrats does not conform to any exemption that Congress has crafted to protect religious entities from being forced to act in violation of their beliefs; it instead is drawn from an obscure provision of the tax code that excuses some entities from filing informational tax returns. As a result, entities that have no religious objections to contraceptives enjoy the exemption while religious nonprofits like the Little Sisters don’t. Brilliant.

HHS tried to explain the scope of the exemption by asserting that this subset of religious employers is “more likely than other employers to employ people of the same faith who share the same objection.” But it provided zero evidence for that highly dubious empirical claim. Nor did it explain why that rationale wouldn’t more sensibly justify an exemption that comports with the longstanding exemption under Title VII that allows religious entities to use religion as a criterion in employment decisions.

3. The various arcane means by which religious nonprofits with a third-party insurer, self-insured religious nonprofits, and religious nonprofits that use a “church plan” may come into compliance with the HHS contraceptive mandate share one essential feature: the religious employer is being forced, under the threat of a massive penalty, to allow its plan infrastructure to be used to provide the very coverage that it finds objectionable. While pretending to revise its regulations to reflect the relief granted by the Court’s interim orders in the Little Sisters and Wheaton College cases, HHS has instead continued to impose requirements that dragoon the employer’s own plan infrastructure. 

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