an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Who knew? The following is emphatically not a serious argument, although it's something of an exercise to figure out exactly where it goes wrong.
1. Statutes that appear to conflict should be interpreted harmoniously so that each one's goals can be achieved to the greatest extent consistent with the terms of both statutes.
2. Everyone agrees that direct provision of contraceptive services by the government -- single-payer for contraceptives -- is a way of providing those services that is less burdensome on the religious conscience of objectors than anything else.
3. Taking Hobby Lobby together with the stays in Little Sisters of the Poor and Wheaton College (and subject to the qualification that the stay opinions in both of the latter cases were careful to say that they were not prejudging the merits of the RFRA claims asserted), we "know" that an entity that regards filing the required form as complicity with evil has a less restrictive means of complying with the ACA -- informing the government of its conscientious objection and of the name of its insurance carrier by means either of a court filing or a letter to HHS.
4. Some entities will regard informing the government in any way as itself complicity with evil, because the result of providing that information is that -- because of an action taken by the entity -- employees will have subsidized access to contraceptive services.
5. Again, direct provision of such services is less burdensome on religious conscience (because the objector takes no action whatsoever -- other than existing in the United States -- that makes it complicit in evil, when the government provides the contraceptive services directly).
6. Because of the lack of information (pursuant to #4), the government cannot identify which employers have religious objections to the provision of contraceptive services through their insurance carriers. So the only way to avoid burdening the religious consciences of the objectors identified in #4 is for the government to provide contraceptive services directly to everyone.
7. Because this is a big country, for every imaginable medical service there is someone who will regard providing it through that person's insurance plan as complicity with evil (imagine a particular sort of Christian Scientist [not all adherents, but a particular version]). Because of #6, the only way to avoid burdening those people's religious consciences is direct provision by the government -- single-payer for all medical services.
8. Although the ACA doesn't look like a single-payer statute, it should be interpreted to harmonize it with RFRA, and the best way to do so is #7.
(9. Alternatively, the ACA could be interpreted to make employer participation entirely voluntary [with no penalties for nonparticipation]. Everyone would get medical insurance on the exchanges.)
I have no clue about how the ACA could be interpreted to provide financing for a universal single-payer system or universal participation in the exchanges. But, unless there's some way to do so, in enacting the ACA -- in light of RFRA as interpreted in the foregoing way -- Congress would have simply been putting empty words on paper.