In an excellent post on the Volokh Conspiracy, religion scholar Michael McConnell reviews yesterday’s oral argument in the Little Sisters cases and explains why the argument “confirmed [his] impression that the government has very little reason to force these religious parties to violate tenets of their faith.” Some excerpts, with a few comments in brackets by me:
1. First, it was surprising how little the “substantial burden” argument figured in the government’s argument. In all but one of the cases before the Court, the government won solely on lack of substantial burden, with only the D.C. Circuit reaching the government’s affirmative defense of strict scrutiny. [EW: Not really surprising, given how feeble the no-substantial-burden position is.] …
2. On [compelling-governmental-interest defense], it is revealing that the Solicitor General tried to change its characterization of the government’s interest – from promoting contraceptive access to promoting contraceptive access specifically through the petitioners’ healthcare plans….
One of the problems with this [position] is that the government is essentially trying to define the use of a particular means as the compelling interest in itself. That approach to strict scrutiny is entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest.
The Solicitor General never explained why simply allowing petitioners’ employees to purchase health plans on the exchanges would not fully satisfy the government’s interest – as it does for millions of other employees who do not get contraceptive coverage from their employers (those who work for small employers or exempt religious employers, or have grandfathered plans). This point was a major focus of the religious plaintiffs’ argument. And in its brief, the government flatly declared these alternatives were perfectly adequate:
“If a small employer elects not to provide coverage (or if a large employer chooses to pay the tax rather than providing coverage), employees will ordinarily obtain coverage through a family member’s employer, through an individual insurance policy purchased on an Exchange or directly from an insurer, or through Medicaid or another government program. All of those sources would include contraceptive coverage.”
3. … As a pragmatic man, [Justice Breyer] must be puzzled that the government is going to such lengths when it appears so completely unnecessary.
4. One of the most telling moments of oral argument came during General Verrilli’s final two minutes, when Justice Alito highlighted a key government concession—that because some of the petitioners, including the Little Sisters, have a self-insured church plan, the government actually lacks authority under ERISA to make their third-party administrator provide contraceptive coverage. “In that situation,” Justice Alito asked, “will the Little Sisters still be subject to fines for failing to comply?” General Verrilli’s response was astonishing: “No, we don’t think so.” In other words, the government said it has no plans to actually enforce the mandate against the Little Sisters—and, by extension, any of the roughly 500 other religious organizations that have self-insured church plans. And even if the government coerced these organizations to sign its form, this would not make contraceptives flow.
This raises an obvious question: If the government has no plan to enforce the mandate against the Little Sisters, why has it been resisting their case for the last three years? Apparently, the government knows it would be senseless to fine the Little Sisters $70 million per year when the forced compliance would not make contraception coverage available anyway. Why did it wait until oral argument in the Supreme Court to make this crucial concession?
At a bare minimum, the concession establishes a complete lack of a compelling interest, or any interest at all, in forcing the petitioners with self-insured church plans to sign a form that will have no legal effect. More broadly, if Congress did not vest the agencies with authority to make the mandate work as to roughly 500 religious organizations, how compelling could its interest be with respect to the others?
It is probably too much to hope that the Court will reach anything close to unanimity in a case with the symbolic and cultural valence of this one, but as soon as we get into the weeds of regulatory detail, it becomes obvious that there is no real conflict here. Not a single woman needs to be denied access to contraceptives through a seamless process – and the Little Sisters of the Poor can be left alone to carry on their good works without being required to be the government’s handmaiden for the provision of contraceptives. At a time of rising divisiveness and polarization, it would be greatly calming if the Court could unite in this case to protect the rights of many with absolutely no injury to anyone else, or to the public good.