Monday, February 17, 2014

Hobby Lobby Part VII: Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb"

Marty Lederman

In its brief filed last week, Hobby Lobby makes two principal arguments about why the government does not have a compelling interest in declining to provide religious exemptions for employers who object to certain forms of contraception coverage in their employee health plans.

First, Hobby Lobby argues that although the government may have a general interest in advancing public health, it has not demonstrated that providing the exemption in question would compromise that interest and, in particular, has not shown that it is important for employer plans to include coverage of the four forms of birth control to which Hobby Lobby specifically objects--two types of IUDs, Plan B, and ella.

There is something a bit artificial about trying to confine the case to four of the 18 forms of contraception covered under the HHS Rule.  For one thing, as I wrote in an earlier post, dozens of for-profit employers have filed cases against the HHS Rule, and presumably the Court granted the petitions in Hobby Lobby and Conestoga Wood in order to provide some significant guidance to the lower courts in resolving those many other cases.  A decision limited to an objection to four particular contraceptive methods would be unlikely to resolve the hard questions in those other cases—most of which involve more categorical objections to all manner of contraception.  Therefore, unless the Court is inclined only to decide these two particular cases, and to wait until next Term to take up the more common, more comprehensive challenges from Catholic employers, it is likely to consider more broadly what effect a patchwork series of exemptions would have, including exemptions that would exclude contraception altogether.

Moreover, it's not even clear that the Hobby Lobby and Conestoga Wood cases themselves are limited to the four named forms of contraception.  Both sets of plaintiffs have alleged that they are religiously prohibited from allowing plan coverage with respect to any "items that risk killing an embryo" (Hobby Lobby brief at 9; emphasis added)--i.e., items that might, in some small percentage of cases, cause an embryo not to implant in the uterine wall.  (Indeed, the four identified methods themselves are not likely to have that effect in any particular case, and there's no scientific certainty that some or all of them will ever prevent implantation.  Plaintiffs' view appears to be that they are entitled to an exemption solely by virtue of the possibility of such effect in some unknown but small percentage of cases.)  And if that's the case, these cases themselves may implicate many more than four types of contraception.  As I wrote earlier with respect to Conestoga Wood's complaint:
[It] refers . . . 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.”   
But even if the Court were to consider only the four particular forms of contraception that Hobby Lobby identifies, the amicus brief filed by the Guttmacher Institute (see pp. 12-21 in particular) explains why coverage of such methods in health insurance plans will advance the government's interests by significantly reducing the incidence of unplanned pregnancies (which would, of course, have many salutary effects, not least of which would be fewer abortions).  That brief demonstrates that cost is not only correlated with the regularity of the use of contraception; it is also a major factor in determining which contraceptives women use.  In particular, it is almost certain that cost-free access to all of the FDA-approved methods will result in much more common use of IUDs, which are among the most effective of contraceptive methods, but also among the most cost-prohibitive.  Hobby Lobby and Conestoga Wood each seek an exemption that would, at a minimum, deny their female employees cost-free access to IUDs, a very valuable benefit that almost all other women in America can now take advantage of.

Second, Hobby Lobby reiterates Conestoga Wood's argument that the government cannot possibly have a compelling interest in guaranteeing women cost-free access to contraceptive services, and in denying religious exemptions, in particular, since its own regulations are themselves said to be substantially underinclusive.  Those regulations, Hobby Lobby argues, are so "honeycombed with religious and secular exemptions" that "millions" of women will not receive the articulated benefits.

Eugene Volokh has explained why such an underinclusiveness argument might be unavailing even if the exceptions to the law were as extensive as the plaintiffs claim--pointing to cases such as Hernandez v. Commissioner (1989), United States v. Lee (1982), and Gillette v. United States (1971).  

But even apart from that doctrinal point, I explained earlier that the factual predicate of this underinclusiveness argument is simply mistaken:  With one minor exception, the purported “exemptions” Hobby Lobby identifies are not exemptions at all; in each case, women will be entitled to cost-free contraception insurance.  And that one exception—HHS’s exemption for churches—will affect very few female employees who would otherwise make claims for cost-free contraception coverage.  The contraceptive coverage here, therefore—like all of the other preventive care services the statute requires, such as immunizations and colo-rectal cancer screening—is a benefit to which virtually all women in the United States will be entitled.

Hobby Lobby has not offered any arguments in its brief responding to the arguments that I've made (and that the government made in its opening brief) about why the regulations are not, in fact, underinclusive.  Therefore I'll simply refer interested readers to my earlier post for further details.

My Posts on Hobby Lobby and other contraceptive-coverage cases 

Hobby Lobby Part I -- Framing the issues

Hobby Lobby Part II -- What's it all about? (contraception?  abortifacients?  other religious objections?)

Hobby Lobby Part III -- There is no "employer mandate"

Hobby Lobby Part III-A -- Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?

Hobby Lobby Part III-B -- Is it necessary that the government-imposed pressure to violate a religious obligation be substantial?

Hobby Lobby Part IV -- The myth of underinclusiveness

Hobby Lobby Part V -- Whose Religious Exercise?  Of corporations, for-profit employers, and individual plaintiffs acting in their various corporate capacities

Hobby Lobby Part VI --  The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Hobby Lobby Part VII -- Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb" 

Hobby Lobby Part VIII -- Hobby Lobby's identification of the "precise religious exercise at issue here," and some thoughts on whether federal law substantially burdens it

* * * *

Not Quite Hobby Lobby: The Nonprofit Cases (including Little Sisters and Notre Dame), and Opting Out as Complicity [with UPDATE on Little Sisters "church plan" situation]

Government brief in Little Sisters

Little Sisters State of Play

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters)


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