Bench Memos

Law & the Courts

Posner’s Pottage

In a 2-1 ruling yesterday in University of Notre Dame v. Burwell, a Seventh Circuit panel ruled that the University of Notre Dame is not entitled to a preliminary injunction that would protect it from being required to comply with the Obama administration’s so-called HHS mandate “accommodation.” The majority opinion by Judge Richard Posner deserves, alas, the harsh epithet Posnerian. Consider:

1. In March, the Supreme Court vacated Posner’s February 2014 judgment in this case (which Matt Franck ripped apart here) and remanded the case to the Seventh Circuit so that it could reconsider its ruling in light of the Supreme Court’s June 2014 decision in Burwell v. Hobby Lobby. But it’s not until the bottom of the 18th page of his 25-page opinion that Posner turns to consider Hobby Lobby as a sort of afterthought. By that point, he’s already re-embraced (nearly verbatim, in some key passages) the mistaken analysis in his February 2014 ruling.

2. Posner (unlike Judge Joel Flaum in dissent) shows no real sign that he’s read and understood Hobby Lobby.

On the “substantial burden” inquiry in Hobby Lobby, the Court emphasized that “the federal courts have no business addressing” whether a religious believer’s view of what constitutes immoral complicity in evil is reasonable:

[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our “narrow function … in this context is to determine” whether the line drawn reflects “an honest conviction,” and there is no dispute that it does. [Citation omitted.]

Posner professes to recognize that Notre Dame “is the final arbiter of its religious beliefs” and only to address “whether the law actually forces Notre Dame to act in a way that would violate those religious beliefs.” But he instead spends the bulk of his analysis (pp. 10-18) redefining what Notre Dame’s beliefs are.

In its brief (or Rule 54 statement), Notre Dame set forth its belief that “taking the actions necessary to comply with the ‘accommodation’—i.e., submitting the required form and maintaining an ongoing contractual relationship with a TPA [third-party administrator] or insurer that provides contraceptive coverage to its plan beneficiaries—makes it complicit in moral wrong.” Notre Dame objects, in short, to “facilitating contraceptive coverage.” But Posner instead narrowly redefines Notre Dame’s objection to facilitation as though it were only an objection to being an intermediary in the process of providing contraceptives. That redefinition leads, for example, to Posner’s confused observation that “the only ‘conduit’ [under the accommodation] is between the companies and Notre Dame students and staff; the university has stepped aside.” (Emphasis added.) It likewise leads to his repeatedly second-guessing the coherence of Notre Dame’s objection: e.g., “It’s difficult to see how [an alternative arrangement] would make the health plan any less of a ‘conduit’” (p. 12). And it underlies his assertion that it is “federal law” alone, and not the coerced complicity of Notre Dame, “that requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services” for Notre Dame employees and students. 

3. Further evidence that Posner doesn’t understand Hobby Lobby comes from his mistreatment of the role that the accommodation played in the Court’s least-restrictive-means analysis. As I’ve explained repeatedly, the Hobby Lobby majority used the accommodation (and the government’s robust claims about its supposed virtues) merely to show that the government had failed to make its necessary showing under the federal Religious Freedom Restoration Act that the HHS mandate was the least restrictive means of furthering its (supposed) compelling interest. In other words, because, on the government’s own account, the accommodation would be less restrictive than the HHS mandate of Hobby Lobby’s religious liberty (while serving the government’s stated interests equally well), the government failed to establish that the HHS mandate was the least restrictive means of furthering its interests. Thus, the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Proof of that point is provided by the injunction against the accommodation that the Court granted Wheaton College.

Posner wrongly states that the Court “held” that Hobby Lobby “would be entitled to the ‘accommodation.’” He even falsely asserts that the “companies in Hobby Lobby requested the accommodation.” (Emphasis in original.) No, they used its existence to show that the “less restrictive means” test wasn’t satisfied. And, discussing the duty of institutions subject to the accommodation “to fill out form FSBA [sic*] 700 and mail it to their health insurers,” he also imaginatively claims that the companies in Hobby Lobby “did it without protesting.” No, they haven’t done it at all. The existing “accommodation” doesn’t apply to for-profits; the most the government has done is propose a future rule that would apply to for-profits like Hobby Lobby. So Hobby Lobby isn’t subject to, and can’t be complying with, the existing accommodation.

4. There’s so much more sloppiness and confusion in the opinion, but I’ll limit myself (for now, at least) to one last point: Consistent with the public-relations strategy of the Obama administration, Posner falsely presents the accommodation as an “enlarge[ment]” of the exemption from the HHS mandate that houses of worship have been granted. Indeed, he repeatedly refers to the accommodation as an exemption (and to the form as an “exemption form”). The careless reader is led to believe that Notre Dame just has to file a form to enjoy the same protections that churches have. But unlike churches and other houses of worship, Notre Dame and other religious institutions subject to the accommodation will still be locked into an objectionable contractual relationship with a TPA or insurer that will provide the objectionable coverage to their employees and students. They’re not free to contract with a TPA or insurer that won’t provide the coverage.

* Sloppy in big matters, sloppy in small. Posner four times refers to “FSBA 700.” It’s EBSA Form 700


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