Balkinization: <i>Little Sisters</i> State of Play

Little Sisters State of Play

Marty Lederman

The Little Sisters for the Poor filed a reply brief with Justice Sotomayor on Friday. And several other bloggers have weighed in with helpful discussions, including Kevin Walsh, Mike Dorf and Lyle Denniston. I offer a few thoughts below on some of what I understand to be Little Sisters' reply brief arguments. Before I get there, however, it's important to provide a bit of perspective: The emergency motion before Justice Sotomayor, and the Little Sisters case itself, is truly not that important--to focus upon it is to miss the forest for one very idiosyncratic and unrepresentative tree.

As far as the motion for temporary injunctive relief is concerned, nothing much turns on whether it is granted or not, for in neither case will Little Sisters' employees receive the benefit of cost-free contraception coverage, and presumably neither Justice Sotomayor nor the full Court will issue any opinion in this preliminary posture that will resolve the cases that do matter--such as Hobby Lobby and Notre Dame. To be sure, if the Court denies the motion and if Little Sister then chooses not to sign the certification form, Little Sisters will (at least in theory) be subject to significant penalties. But I assume no one is eager to assess such penalties, since the government's view is that the certification is a formality in this case that will not affect the provision of contraception coverage in the slightest, at least not unless and until the government amends its regulation to eliminate the inadvertent loophole that I described at the end of this post. Little Sisters might alternatively do what Notre Dame has done--simply certify and continue to litigate the issue. For Little Sisters, unlike Notre Dame, such a certification would not result in any contraception coverage--would not result in any greater incidence of allegedly sinful conduct or any possible greater involvement of Little Sisters with the use of contraception, remote or proximate--and so it's not obvious why Little Sister would not choose that option.

The important cases, by contrast, are Hobby Lobby/Conestoga Wood and the nonprofit cases, such as Notre Dame, in which the employer's (or university's) opt-out would require an insurance issuer (such as Aetna), or a third-party administrator of a self-insured plan, to offer contraceptive coverage. The Notre Dame case, to be argued before the U.S. Court of Appeals for the Seventh Circuit in mid-February, might be the first occasion for an appellate court to engage fully on the merits. That--and Hobby Lobby--is where the important action is.

It is likely that the Court's resolution of the Little Sisters motion will be about as important for the future resolution of those cases as was Justice Sotomayor's denial of Hobby Lobby's similar motion one year ago--that is to say, not very important at all.

That said, below the fold are some very preliminary reactions to three points made in the Little Sisters reply brief:

1. Little Sisters argues that if it certifies its religious objection, the plan's third-party administrator, Christian Brothers Services, will be legally required to offer contraception coverage to Little Sisters' employees. Little Sisters further argues that the Labor Department does have the legal authority to impose such an obligation upon Christian Brothers. The government says otherwise--that it does not have such authority with respect to "church plans." I do not know enough about ERISA and church plans to have a view on the merits of this dispute--but since the government disclaims any such enforcement authority, that should be the end of the matter: no contraception coverage here is likely or foreseeable, and therefore there's no need for an injunction.

2. Little Sisters argues alternatively that even if Christian Brothers declines to offer contraceptive coverage, LS might be required to provide its certification to another third-party administrator that might not share Christian Brothers' religious objection--Express Scripts, Inc., which apparently provides some kind of pharmaceutical claim administrative services. Little Sisters suggests that perhaps Express Scripts, upon receiving the certification, would voluntarily provide coverage to LS employees, even without any legal obligation to do so. In footnote 7 of its brief, the government notes that Express Scripts was "not discussed in either the district court or court of appeals decisions. Even assuming this entity is a third-party administrator, applicants’ wholly unsupported speculation that it might rely on a self-certification as a basis for voluntarily providing contraceptive coverage to employer-applicants’ employees (absent any regulatory compulsion to do so) does not provide any basis for an injunction. Applicants bear the burden of establishing their entitlement to injunctive relief, and they have wholly failed to do so with respect to any possible coverage by Express Scripts."

I have no knowledge about Express Script's role under the Little Sisters plan, about whether it would receive Little Sisters' certification, about whether it would then choose voluntarily to provide contraception coverage, nor about the state of the record on these questions. But if Little Sisters has done enough to bring the Express Scripts issue into the case, and if its certification would result in coverage offered by Express Scripts, then this case would resemble the case of Notre Dame's employee plan, except that in this case the TPA would provide the coverage voluntarily, rather than under compulsion of law.

3. Finally, Little Sisters argues that if there were a TPA willing or required to offer contraception coverage to Little Sisters employees, then Little Sisters' certification would not merely be a "notice" to the TPA that it can (or must) offer contraception coverage, but would in addition have a legally operative effect, in that it would formally "designate" the TPA as the party that is authorized to offer contraception coverage.

I'm not exactly sure why this point would be so significant. As I noted in my earlier post, of course it is the case that a certification of religious objection "would have a legal effect: As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do." "But if that is enough to establish a substantial burden on [the employer's] religious exercise," I wrote, "then it would effectively mean that governmental religious accommodations taking the form of 'opt outs' for dissenters would themselves often create the very conflict with religion that they are designed to alleviate--and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party." (I then offered analogies to phramacists who opt out of dispensing certain drugs; judges who recuse from certain cases based on religious objections; and conscientious objectors who become exempt from going to war: In each case, the religious objection triggers a legal obligation on the part of another to perform the objectionable conduct.)

I believe Little Sisters adds an additional point, however, that I had not appreciated before--namely, an assertion that its certification not only triggers someone else's responsibility to do what LS objects to doing, but is also a statutorily necessary prerequisite, without which the third party administrator could not offer contraception coverage under the LS plan, either voluntarily or at the government's insistence. At least that's how I understand this sentence on page 12: "But for Applicants signing and submitting these self-certification forms, there would be no contractual or statutory basis for [a TSP] providing contraceptives and abortion-inducing drugs under Applicants’ plan." (emphasis added) (I believe this is also the point Kevin Walsh is pressing.) If this is right, it would apparently follow that the government could not, for example, use Little Sisters' RFRA complaint itself (which articulates its religious objection) as a basis for asking a TPA to offer insurance coverage--a certification, as such, would be necessary.

Whether this is true or not is a technical ERISA question that I am not equipped to answer. But it's not obvious what would turn on it for RFRA purposes, even if LS's account of ERISA were correct. To be sure, if Little Sisters is right that under current law a TPA could not offer the coverage absent a Little Sisters certification, that would make this case distinguishable from my pharmacist and war objector hypos, in both of which the third party could provide her services regardless of any religious objection by the principal party. It would, however, remain akin to my other hypo, in which Judge B, who has not been assigned to the controversial case, can only preside over the trial in question if Judge A recuses. Could Judge A both refuse to preside and refuse to recuse, so as to ensure that no one is able to preside over the trial? Isn't that the basic nature of the claim here?

Moreover, this seems to me to be an especially formalistic objection, one that depends upon the current, technical contingencies of ERISA law. If Congress were to pass a law tomorrow saying that Third Party X, or Government Agency Y, can provide contraception coverage to an employer's employees if and only if the employer declines to do so--much as the ACA itself provides that individuals can obtain health insurance on an exchange only if their employer does not offer it--would Little Sisters be able to complain under RFRA that because their religious objection would be a but-for cause of the alternative means of coverage, they are entitled to an exemption ensuring that no such coverage can be provided by any party?

This is an interesting question, I suppose, and one that might surface in the Notre Dame or other cases. But again, the important point for immediate purposes is that it doesn't matter here, given that Little Sisters' TPA will not voluntarily offer the contraception coverage, and the government disclaims any authority to require it to do so.

Posted 10:55 PM by Marty Lederman [link]