Tuesday, July 01, 2014

Hobby Lobby Part XVII -- Upshot of the decision: A possible win-win solution (and now all eyes turn to Notre Dame) [UPDATED 07/01]

Marty Lederman

There will be much to say about the decision, obviously; but for now here is a short version of the holding and of the implications for women's access to affordable contraceptive services.  (I'll continue to update this post with further thoughts as I re-read the opinions.):

1.  Earlier this morning, before the decision, I speculated that the Court "might remand the cases for trial on the question of whether the government could offer for-profit employers the same option that it has afforded nonprofit religious employers, pursuant to which they could opt out of involvement with contraceptive coverage, which would then be provided, and paid for, by third-party insurers or administrators," and that "[a]lternatively, but less likely, the Court might even hold that RFRA requires the government to extend [this] secondary accommodation to at least certain sorts of for-profit corporations."
The Court in effect took the second route:  It held that because the government may extend its "secondary accommodation" not only to nonprofit employers with religious objections, but to for-profit employers with such objections, as well, and (critically) because such an extension would "achieve[] all of the Government’s aims while providing greater respect for religious liberty," without any burden on third parties or need for new appropriations, such an option is a less restrictive alternative that the government must use rather than subject Hobby Lobby to the preventive care regulation.
Presumably the government will, in response, extend the secondary accommodation to for-profit employers.  See slip opinion at 43 (HHS has this approach "at its disposal").  And just as the vast majority of objecting nonprofit employers have gladly invoked that alternative, presumably so, too, will most for-profit employers with religious concerns.  Indeed, the Court's understanding is that the accommodation will satisfy the religious objections of Hobby Lobby, Mardel and Conestoga Wood.  

Accordingly, and as Justice Alito stresses, the effect of this accommodation on the women employed by Hobby Lobby and the other companies involved in these cases "would be precisely zero.  Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing."  See also slip op. at 42 n.37 ("our decision in these cases need not result in any detrimental effect on any third party").

2.  As the Court notes, however, some other employers--currently only nonprofit employers such as Notre Dame, but surely soon to be joined by at least a handful of for-profit employers--will argue that the secondary accommodation itself violates RFRA.  The Court expressly declines to "decide today" whether the accommodation "complies with RFRA for purposes of all religious claims."  (In a recent post, I explain why I think the factual predicate for such claims is flawed.) 

If the secondary accommodation does not violate RFRA as to nonprofit employers such as Notre Dame, surely the same will be true as to objecting for-profit employers, as well.  Accordingly, the Court's resolution of the Notre Dame case (petition due on October 4), or of any other nonprofit case that gets to the Court before Notre Dame's, will be very significant, because a victory for employers in such a case would--unlike Hobby Lobby--have a profound effect on their employees' access to contraception.

3.  How will the Court resolve Notre Dame?  Here it is important to look to Justice Kennedy's critical concurring opinion.  He indicates his view that the government has satisfied its burden of showing a compelling interest in ensuring that women have cost-free access to the FDA-approved contraceptive methods.  (The majority opinion assumes this conclusion without deciding it.)  Accordingly, the litigation going forward is not likely to focus, as Hobby Lobby and its ilk have, on the compelling interest side of the RFRA equation.
The government thus likely would prevail in Notre Dame unless Justice Kennedy were to conclude that there were a less restrictive alternative--that is to say, less restrictive even than the secondary accommodation--that  would advance the government's compelling interests.  The obvious candidate for such a purportedly less restrictive alternative -- one that receives a lot of attention in both the Alito and Ginsburg opinions -- is the creation of a new taxpayer-funded government program that would subsidize womens' access to contraception.  Here is what Justice Kennedy says about whether that possible alternative, in contrast to the secondary accommodation itself:
[T]he Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program.  Ante, at 41–43.  The Court properly does not resolve whether one freedom should be protected by creating incentives for additional government constraints.  In these cases, it is the Court’s understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government.  As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.  Ante, at 43–44.
“[T]he American community is today, as it long has been, a rich mosaic of religious faiths.” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (KAGAN, J., dissenting) (slip op., at 15).  Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.  Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means.  As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.  Ante, at 45–46.
4.  In cases such as Notre Dame, the government might also press some arguments on the "substantial burden" side of the RFRA equation, even before it gets to the question of less restrictive alternatives.  For one thing, the government could at a minimum challenge the factual predicates of some forms of the plaintiffs' "complicity" argument, as did the Court of Appeals for the Sixth Circuit earlier this month.  That is to say, it could argue that invoking the accommodation does not, in fact "ha[ve] the effect of enabling or facilitating the commission of an immoral act by another" (p.36).

Moreover, the government could argue (as I've discussed in numerous posts) that the Section 4980H(a) tax, imposed upon a large employer that does not retain its health plan, does not impose significant pressure on a particular employer to retain a plan that includes contraception coverage.  Justice Alito twice states that it is "far from clear" what the costs of this option would be for any particular employer.  In this respect, I think the majority got it right, as I've argued repeatedly that such a question is very fact- and context- and employer-specific.  It is, as Justice Alito wrote, "intensely empirical."

Now, as I've also explained, such uncertainty about the existence and degree of any federal-law coercion should result in a denial of plaintiffs' motions for preliminary relief, since it is their burden to demonstrate that the law significantly burdens their religious exercise by
imposing significant pressure on the corporate directors to violate their religious obligations.  If the matter is "far from clear," as the Court insists, then why should the Court assume the plaintiffs are likely to prevail in satisfying their burden?  Justice Ginsburg is exactly right about this in footnote 20 of her dissent.  The Court simply asserts that "[w]e doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sincerely held religious beliefs or making all of their employees lose their existing healthcare plans."  But in fact, Congress did think that such a result would be "tolerable" in the small number of cases where employers have religious objections to insurance coverage, since it has permitted employers to do just that--and many or most employers likely will do so, religious objection or not.  

In any event, what is important going forward is that the government should now be able to put an employer to its proof on this question in any or all of the forthcoming challenges to the secondary accommodation.

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