There she goes again!
“Judge Beetlestone” sounds like the name of a villain in a Dickens novel. But Wendy Beetlestone, chief judge of the Eastern District of Pennsylvania, is not fictitious.
Six-and-a-half years ago, in a case brought by Pennsylvania and Delaware, Judge Beetlestone barred the Trump administration from enforcing its final rules that would exempt the Little Sisters of the Poor and other employers with religious or moral objections from complying with objected-to portions of the Obama administration’s contraceptive mandate. In direct conflict with the Obama administration’s own actions, Beetlestone ruled that the executive branch has no authority under Obamacare to exempt any employers from the Obama administration’s contraceptive mandate on religious or moral grounds. On the separate question whether the federal Religious Freedom Restoration Act authorizes or requires the religious exemption, Beetlestone adopted the astounding position that federal bureaucrats are not supposed to give any thought to what RFRA demands. She further ruled that procedural defects that she previously found in the “interim” rules fatally tainted the final rules. Never mind that the Obama administration used the same process, with the same supposed defects, to create the underlying contraceptive mandate in the first place, and the effect of her ruling is to re-impose that mandate on objectors.
Five years ago, the Supreme Court, by a vote of 7 to 2, rejected each of Beetlestone’s rulings. In his opinion for the Court, Justice Clarence Thomas lamented the burden that has been placed on the Little Sisters’ religious liberty:
[F]or the past seven years, they—like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision— have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs.
Justice Thomas declared that the matter had finally been resolved:
After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns—the administratively imposed contraceptive mandate.
On remand, however, Judge Beetlestone wasn’t through. She first sat on her hands for the entirety of the Biden administration, in the evident hope that it would revoke the Trump administration’s rules. When that didn’t happen and Donald Trump won a second term as president, Beetlestone went to work concocting another basis for invalidating the rules.
In an opinion yesterday, Beetlestone ruled that the Trump administration’s actions in adopting the religious and moral exemptions were arbitrary and capricious in violation of the Administrative Procedure Act.
I’m not going to get into the weeds here of Beetlestone’s reasoning but will limit myself to a couple of observations.
First, the contraceptive mandate is itself a regulatory creation, an implementation of an Obamacare provision that calls for employers to provide “preventive care and screenings” without “any cost sharing requirements.” The broad discretion that the Department of Health and Human Services had in creating the contraceptive mandate in the first place would certainly seem to include broad discretion in crafting exemptions.
Second, as Justice Alito (joined by Justice Gorsuch) spelled out in his concurrence in 2020, the Religious Freedom Restoration Act itself compels the religious exemption. Judge Beetlestone concludes otherwise only by relying on unsound circuit precedent (if indeed it remains circuit precedent at all) that the contraceptive mandate, as modified by the Obama administration’s so-called Accommodation, does not “substantially burden objectors’ religious exercise.”
More broadly, having sat on this case for five years, Beetlestone has no justification for disrupting the status quo during the appellate process. The Third Circuit should promptly stay her ruling pending appeal, and if it doesn’t do so, the Supreme Court should.