Are the Hobby Lobby and Conestoga Wood cases about employee health insurance plan coverage of
contraception, writ large, or—as the plaintiffs in those two cases would have it—“only”
about coverage of “abortifacients,” or about four discrete forms of birth control? Something less? Something
more?
As I'll try to explain in
this post, the cases do not, in truth, have anything to do with abortion or “abortifacients”
as those terms are generally understood under federal law or in the medical and
scientific communities. Beyond that, however, it is hard to know for certain
exactly which forms of birth control are specifically challenged in these two
cases. Nevertheless, what is clear is that the Supreme Court’s decision in these
cases could implicate legal
requirements imposed upon for-profit employers that reach well beyond any particular birth-control methods—indeed, beyond
contraception itself.
As I noted in my
opening post, the plaintiffs in the two cases before the Court allege that
the “Preventive
Services” Rule, issued by the Departments of Health and Human Services,
Labor and Treasury, “substantially burdens” their exercise of religion for
purposes of RFRA based on the following logic:
(i) federal law requires the companies in question to offer their employees access to a medical insurance plan;(ii) the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;(iii) the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[] others to engage in, or otherwise support[] [the use of] abortion-causing drugs and devices”; and(iv) the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”
In my next post,
I will examine the fundamental predicate of the plaintiffs’ argument—number (i)
above—which is that federal law requires large employers to offer their
employees access to a medical insurance plan, upon threat of serious sanction.
And in future
posts, I’ll discuss whose exercise of
religion is at stake in these cases—the corporations’, the individual
plaintiffs’ as owners of the
companies, or the individual plaintiffs’ as managers
of those companies; whether the plaintiffs have carried their burden of
showing a “substantial burden” on that religious exercise; and, if so, whether the government can justify denials of exemptions under the RFRA test.
In this post,
however, I start with a discussion of the second step in plaintiffs’ argument—their
assertion that the HHS Rule requires an employee health insurance plan to
provide for coverage of “abortifacients.”
1. Let’s
begin with what the challenged HHS Rule
requires. As I’ll discuss in my next post, neither the HHS Rule nor any other federal law requires employers to offer a health-care plan to their employees. What the Rule does, instead, is to specify certain coverage that must be contained in such plans that are offered.
Even prior to
2010, federal law required that group health insurance plans include coverage
for several things, such as minimum hospital stays for mothers and newborns
after birth, 29 U.S.C. § 1185; reconstructive breast surgery if the plan
otherwise covers mastectomies, id. §
1185b; and routine patient costs for items and services furnished in connection
with participation in certain clinical trials, 42 U.S.C. § 300gg-8.
The ACA made a
significant addition to this list: Congress decided that virtually all
Americans should be entitled to a wide array of affordable “preventive health
services.” Many people receive such services through Medicare, or
Medicaid, or by purchasing a plan (often with substantial government subsidies) on a government-run “exchange.” But
many Americans receive their health insurance from a plan offered by their
employers. Accordingly, the ACA requires that such employer plans--like all other plans--include the
specified “preventive health services,” which must be made available without
cost-sharing, that is, without requiring plan participants and beneficiaries to
make copayments or pay deductibles or coinsurance. Id. § 300gg-13. These services include: cholesterol
screening; colorectal cancer screening; diabetes screening for those with high
blood pressure; certain immunizations; and “evidence-informed preventive care
and screenings” for infants, children, and adolescents.
Most importantly
for present purposes, the ACA also requires coverage “with respect to women,
[of] such additional preventive care and screenings . . . as provided for in
comprehensive guidelines supported by the Health Resources and Services
Administration.” Id. §
300gg-13(a)(4). This particular addition was based upon a legislative
record showing that “women have different health needs than men, and these
needs often generate additional costs.” 155 Cong. Rec. 29,070 (2009)
(statement of Sen. Feinstein). As Judge Rovner explained in her
dissenting opinion in a recent
case,
In proposing the amendment, Senator Mikulski noted that many women forego preventive screenings for the conditions that statistically are most likely to result in their death — breast, cervical, colorectal, ovarian and lung cancer, and heart and vascular disease — either because they lack insurance, the services are not covered by their insurance plans, or because the large copayments required by their insurance companies for these screenings are beyond their financial means. “Women of childbearing age incur 68 percent more out of pocket health care costs than men,” she pointed out. “My amendment guarantees access to critical preventive screening and care for women to combat their number one killers and provides it at no cost. This amendment eliminates a big barrier of high copayments.”
As noted above,
the list of covered preventive care and screenings for women is to be derived
from “comprehensive guidelines supported by the Health Resources and Services
Administration,” or HRSA. On August 1, 2011, HRSA adopted and released those Guidelines, which were
based upon assessments made in a study
by the Institute of Medicine. HRSA determined that plans should include
coverage without cost-sharing for: specified annual well-woman visits;
gestational diabetes screening; HPV DNA testing; testing for sexually
transmitted diseases and HIV screening and counseling; breastfeeding support,
supplies and counseling; domestic violence screening and counseling; and . . . “all Food and Drug Administration approved
contraceptive methods, sterilization procedures, and patient education and
counseling for women with reproductive capacity.”
The FDA has
approved 20
contraceptive methods and sterilization procedures. Under the HHS
Rule, group health plans must provide coverage without cost-sharing for 18 of these 20 methods and procedures. The
required coverage extends to:
-- the female condom-- the diaphragm-- the sponge-- the cervical cap-- spermacide-- the “combined pill” (with estrogen and progestin)-- the progestin-only “mini-pill”-- the “extended/continuous use” pill-- the patch-- the vaginal ring-- a progestin shot-- Plan B and other levonorgestral-based pills-- ella (a pill with ulipristal acetate)-- the copper IUD-- a levonorgestrel-releasing IUD with progestin-- an implantable rod-- female sterilization surgery; and-- a female sterilization implant
(Presumably
because the statute itself refers to preventive care “with respect to women,”
HHS does not require coverage of the other two FDA-approved birth-control
methods: condoms and vasectomies.)
2. Let’s
turn next to what the plaintiffs in
these two cases object to covering in their employees’ health insurance plans.
As I explained
in my initial
post, the heart of the plaintiffs’ claims in these two cases is that the
HHS Rule will require the owners of the two companies to be complicit in (in
Hobby Lobby’s words, to “participate in, provide
access to, pay for, train others to engage in, or otherwise support”) the use
of what they refer to as “abortion-causing drugs and devices,” or “abortifacients.”
Now, as far as
scientific and medical understandings are concerned—and, more to the point, as
far as understandings under federal law are concerned—this is a null set, because none of the covered 18 forms of
FDA-approved birth control involves abortion. Indeed, the HRSA-approved
list could not include drugs that
cause abortions, because plans must include what’s on the HRSA list, and the
Act itself specifically allows plans to exclude abortion services. 42
U.S.C. § 18023(b)(1).
So are these cases
about nothing at all?
No, they are certainly
about something—but only because of the particular religious beliefs of the
plaintiffs, not because they in fact involve “abortifacients.” Both sets
of plaintiffs allege that, in their view, human life begins at the point where
an egg and sperm unite, even before the embryo is implanted in the uterine
wall, and that it is immoral to take steps to “terminate” such human life, even by preventing the embryo’s implantation.
(See, e.g., paragraph 109 of the Hobby
Lobby complaint, and paragraphs 30 and 92 of the Conestoga
Wood complaint.)
In medical and
scientific circles, preventing implantation is not an abortion. Federal
law adopts the same understanding—namely, that an abortifacient works by
destroying an embryo already implanted
in the uterine lining. (Federal law doesn’t define “abortion,” as such;
but a long-established federal regulation defines a “pregnancy” to “encompass[]
the period of time from implantation until delivery.” 45 C.F.R. 46.202(f).
See also 62 Fed. Reg. 8610, 8611 (Feb. 25, 1997) (“Emergency contraceptive
pills are not effective if the woman is pregnant; they act by delaying or
inhibiting ovulation, and/or altering tubal transport of sperm and/or ova
(thereby inhibiting fertilization), and/or altering the endometrium (thereby
inhibiting implantation).”)
The plaintiffs,
by contrast, do call such
implantation-prevention an “abortion,” and thus they denominate drugs that
prevent implantation “abortifacients,” even though the legal, medical and
scientific communities do not treat them as such.
In the end,
plaintiffs’ unconventional terminology does not matter for purposes of their RFRA claim: Wholly apart from questions
of nomenclature, plaintiffs appear to sincerely believe it is immoral to
deliberately use a drug or device that prevents implantation of an embryo.
And therefore they are challenging the HHS Rule only as it applies to such
drugs or devices.
OK, so which of
the 18 forms of FDA-approved birth control covered by the HHS Rule prevent
embryo implantation?
Well, that’s
uncertain. As far as I know, none of the 18 methods primarily
operates by preventing implantation. Indeed, my understanding is that it
is not conclusively established that any
of them does.
Hobby Lobby
nevertheless objects to four of these 18 methods because they might prevent implantation: the
copper IUD, the levonorgestrel-releasing IUD with progestin, and two “emergency”
contraceptive drugs, Plan B and ella. In support of this list, Hobby
Lobby cites the FDA’s own website.
That FDA website
states that Plan B and ella work “mainly” by preventing the release of an egg
from the ovary; that the copper IUD “prevents sperm from reaching the egg,
[and] from fertilizing the egg”; and that the progestin-based IUD “may thicken
the mucus of [the] cervix, which makes it harder for sperm to get to the egg.”
Plaintiffs do not object to such contraceptive functions of these birth-control
methods—that is to say, they do not
object to the primary ways in which these methods work. The FDA site also
states, however, that Plan B “may” prevent implantation of an embryo “by
changing the lining of the womb”; that ella “may also work by changing the lining of the womb (uterus) that may
prevent attachment (implantation)”; that the copper IUD “may prevent the egg from attaching (implanting) in the womb
(uterus)”; and that the progestin-based IUD “thins the lining of [the] uterus”
(without mention of preventing implantation).
The FDA’s statements about the possibility of Plan B and
ella preventing implantation are
open to serious question. One amicus
brief, for instance, argues that recent studies have demonstrated that Plan
B “does not cause changes to the endometrium (uterine lining) that would hamper
implantation,” and that although whether ella has an effect sufficient to
prevent implantation of a fertilized egg “is unknown,” there is “no scientific
evidence showing” that it is able to prevent implantation, either.
Even so, the
Hobby Lobby plaintiffs claim that the very risk
of such effect renders it religiously impermissible for them to facilitate use
of those four drugs. In other words, they appear to be arguing, not only
that their religion prohibits the use of any drug or device that has a remote chance of preventing
implantation of the embryo, but also that their religion prohibits the Hobby
Lobby owners/managers from providing (or paying
for) a health-care plan that some employees may use to subsidize purchase of
such drugs, because in some unknown but small percentage of cases the use of
such drugs might result in
implantation-prevention.
As for the
Conestoga Wood complaint, it mentions Plan B and ella in passing, but it does not otherwise explain which of the FDA-approved birth control methods the
Conestoga Wood owners consider to be objectionable “abortifacients”; it simply
refers more vaguely to “several drugs or devices that may cause the demise of
an already conceived but not yet attached human embryo.” Therefore there is no way
of knowing at this early stage of the litigation which forms of birth control
are at stake in the Conestoga Wood case—even by the plaintiffs’ own lights.
Perhaps it’s the four methods identified by Hobby Lobby . . . or fewer; or
perhaps even more: For example, although the FDA website doesn’t mention
it, the FDA-approved
labeling for Seasonale, a birth-control pill, reads: “Although the
primary mechanism of this action is inhibition of ovulation, other alterations
include changes in the cervical mucus (which increase the difficulty of
sperm entry into the uterus) and changes in the endometrium (which reduce the
likelihood of implantation.” Is Seasonale a potential “abortifacient” in
the eyes of Conestoga Wood’s owners? We don’t yet know. What we do
know is that there are plenty of groups (and presumably employers) out there
who think that more than four of the FDA-approved methods of birth
control are morally problematic because they might prevent implantation of the
embryo in some case: See, for example, this
website, concluding that ten or more of the methods involve “embryocide.”
In sum, these
two cases nominally involve objections to at least four of the 18 FDA-approved
forms of birth control covered by the HHS Rule—the two types of IUDs, ella and
Plan B—even though none of them is, in fact, an abortifacient as that term is
understood in the law and in the medical and scientific communities, even
though none of them primarily works by preventing embryo implantation, and even
though there is little or no evidence that some of those methods ever prevent pregnancy by inhibiting
implantation.
But the two
cases might involve even more than four of the 18 FDA-approved methods—perhaps
most of them. Alternatively, it might turn out, after discovery and the
courts’ assessment of the evidence, that even on plaintiffs’ own RFRA theories,
they would be entitled to exemptions for fewer than four of the methods—if, for
example, the trial courts were to conclude that there is no evidence that some
of those methods prevent implantation of an embryo.
The plaintiffs’
claims might also raise a bunch of thorny issues of implementation: Would
the exemption extend, for instance, to cases in which employees use birth
control in a manner that is virtually certain not to result in prevention of implantation (such as timely use of
an IUD, which ought to prevent fertilization before implantation could ever be
an issue)?
3. On the
other hand . . . although the scope and implementation of possible exemptions
for these particular plaintiffs might be uncertain and speculative at this very
preliminary stage of the litigation, the
implications for what is at stake in the Supreme Court’s decision certainly
extend well beyond any particular birth-control methods—indeed, beyond
contraception itself.
Several of the
other plaintiffs who have brought challenges to the HHS Rule, for instance—including
most or all of the Catholic objectors—object to each and every form of
FDA-approved contraception, because they claim that their religious teachings
condemn contraception as such. If the Court were to rule in favor of
Hobby Lobby and Conestoga Wood, then, the decision might well require the
government to afford RFRA exemptions to other for-profit employers to permit exclusion of all contraceptives and sterilization
procedures from their employee plans.
Nor is the case
only about contraception. It is very easy to contemplate employers
who have religious objections to other forms of mandated preventive health
services, such as
vaccinations for chicken pox, Hepatitis A, and Rubella. Others may
object to coverage of routine patient costs for items and services furnished in
connection with participation in certain clinical trials. (This last
example, and others along this slippery slope, are described in much greater
detail at pages 68-77 of Judge Rovner’s dissenting opinion in the Seventh
Circuit’s recent Korte decision.)
Indeed, the
impact of the Court's decision will hardly be limited to preventive care, or health
insurance, either. Federal law imposes countless requirements and
restrictions on for-profit employers, many of which conflict with sincerely
held religious views of the owners or managers of the regulated enterprises.
A ruling in favor of plaintiffs here, then, could presage RFRA claims for “myriad
exceptions flowing from a wide variety of religious beliefs,” U.S. v. Lee, 455 U.S. at 260, in the
commercial sphere.
In one
of his posts, Eugene Volokh stresses that, under RFRA, a court is not ordinarily
supposed to consider the costs of exemptions beyond those specifically sought
by the plaintiffs before the court:
Under RFRA, it’s not enough for the government to point to how the Affordable Care Act writ large supposedly protects health. Nor is it enough for the government to point to how the coverage for contraceptives generally would protect health. Rather, the question is whether denying the limited religious exemption that is being sought here — the exemption for the particular potentially implantation-preventing contraceptives to which the claimants object — would undermine a compelling interest in protecting health, so that denying the exemption would be the “least restrictive means” of protecting health. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” (quoting from the Court’s O Centro decision).
In the ordinary
case (such as O Centro itself), that
may well be the proper method of RFRA adjudication, at least for a lower court.
In this case, however, the Supreme Court will almost certainly be taking a
wider view, for at least two reasons.
First, both of
these cases come to the court at a very preliminary stage, before any discovery
has been taken and without any factual findings. Therefore, as explained
above, we don’t even know which forms of birth control would be covered by the
exemptions sought by the plaintiffs. (What if it turned out that none of
the methods in question actually prevent implantation, for instance? What
if most of the 18 methods could do so, at least in theory?) Nor will the
Court know exactly how and to what extent the government’s interests—and women’s
health and economic equality—would be implicated by an employee plan that
covered some particular forms of contraception and not others, a question that
the trial courts have not yet considered. So, to the extent the case
truly were only about the exemptions
sought by the plaintiffs in these two cases, the case would hardly be ripe for
the Court’s consideration.
Second, and more
fundamentally, there have been a slew of cases filed by for-profit employers
against the HHS Rule (45, by the Becket Fund’s count);
and presumably the Court granted the petitions in these two particular cases in
order to afford some significant guidance to the lower courts in resolving
those dozens of other cases. A decision limited to the RFRA balancing in
the idiosyncratic circumstances of particular employers objecting to so-called “implantation-preventing
contraceptives” would be unlikely to resolve the hard questions in those other
cases—most of which involve more categorical objections to all manner of
contraception.
For these
reasons, I doubt the Court will limit its analysis to forms of birth control to
which these plaintiffs object. Its rationale is likely to extend to
religious objections to all forms of contraception, at a minimum . . . and
perhaps further still.