Wednesday, March 12, 2014

Hobby Lobby Part X--A quick word on the Conestoga Wood reply brief

Marty Lederman

Conestoga Wood filed its reply brief this morning.  (The government will also file its reply brief in Hobby Lobby today, which will complete the briefing.  [UPDATE:  The government's reply brief is here.)

There is not much new in the brief that I and others have not already addressed.  One assertion, however, is worth a brief response, because it repeats a claim that is becoming common in discussions of these cases.  

The Conestoga Wood brief asserts (p.20) that the government "seems to argue that it has a compelling interest, not in women getting abortifacient [sic] coverage, but in them getting it from their employer" (emphasis in original).

This mischaracterizes the government's compelling interest.  The government's compelling interest is in making sure that all Americans have access to cost-free preventive services (including, but not limited to, contraception) as part of their affordable health-insurance plans.  (And the principal, compelling reason why cost-free access to the FDA-approved contraceptive services, in particular, is included among those baseline preventive services is that such access will result in a considerable reduction in unintended pregnancies.)

That compelling interest is not dependent on an individual's employer being the source of the coverageIf an individual is not employed, she will receive that benefit in her government-established or government-subsidized health insurance plan (through Medicare, Medicaid, or an exchange plan).  If she is employed but her employer does not offer an employee plan (an option open to Conestoga Wood, as I have explained at length in many posts), she will receive the benefit in an exchange plan, subsidized if necessary by the government. 

The remedy Conestoga Wood seeks, by contrast, would deny its female employees this virtually universal benefit--unlike almost all other women in America, they would have an insurance plan that does not cover all FDA-approved contraceptive methods (including one of the most effective such methods--the IUD).

Conestoga Wood also repeats the assertion that this interest in ensuring access to cost-free preventive services in everyone's insurance plan must not be very compelling because Congress has allowed for "comprehensive" exemptions (p.23).  But as I have explained before, that is not the case.  The contraceptive coverage at issue, like the other preventive care services the statute requires, is a benefit to which virtually all women in the United States will be entitled.  The singular exception is that HHS has exempted churches and their auxiliaries from the requirement to include contraception if they offer an employee health insurance plan.  The employees of such churches are virtually the only women in the United States who ultimately will not, in fact, be entitled to cost-free contraception coverage.  But that exception, which will affect a relatively tiny number of women, will not have remotely the same impact on the government’s interests that a patchwork series of religious exemptions for for-profit employers would have.  Federal law permits churches—unlike for-profit employers—to discriminate in hiring in favor of coreligionists, and therefore most employees of such churches share the church’s views, or at least understand that they may be expected to conform to the church’s religious teachings.  Accordingly, as HHS explained, it “anticipates that the impact on employees of exempted organizations will be minimal, given that any religious objections of the exempted organizations are presumably shared by most, if not all, of the individuals actually making the choice as to whether to use contraceptive services--largely employees of houses of worship.”

Compendium of posts on Hobby Lobby and related cases

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