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
Update on the contraception coverage regulations and litigation [Further UPDATED to add eighth and ninth court of appeals decisions, fifth and sixth cert. petitions, and first two government briefs in opposition to certiorari]
It's been almost a year since my last series of posts on the fallout from Hobby Lobby--in particular, on the challenges by nonprofit organizations to the government's augmented religious accommodation. (See my posts of July 18, July 24 and August 22 at this link.)
A lot has happened since then, and further Supreme Court review is now a distinct possibility (although hardly inevitable). And so, here's a post devoted to catching up, in three parts. First, a quick note on the government's new final rules regarding the religious accommodation (including its extension to some for-profit employers such as Hobby Lobby, Inc.). Second, a summary of the courts of appeals' treatment of the nonprofit challenges. And third, I'll discuss the handful of cert. petitions that already have been filed in the nonprofit cases--with particular emphasis on the theories of complicity that those petitions allege in support of the argument that the accommodation imposes a "substantial burden" on the plaintiffs' religious exercise.
Before getting to all of that, here's one other noteworthy development: In October, the New England Journal of Medicine published a study indicating that teenagers' cost-free access to long-acting, reversible contraceptive methods, including intrauterine devices (IUDs) and implants, can have a dramatic impact on the rates of unwanted pregnancies, births and abortions.
I.The Final Regulations
This past Tuesday, July 14, 2015, the government published in the Federal Register a series of final rules issued a few days earlier by the Departments of Health and Human Services, Labor and Treasury. The regulations finalize provisions from three earlier rulemaking actions: (i) interim final regulations issued in July 2010 concerning general application of section 2713 of the Public Health Services Act, which requires health insurance plans to offer coverage, without cost sharing, of certain "preventive health services"; (ii) interim final regulations issued in August 2014 related to the process by which an eligible religious organization can "opt out" of its own involvement in coverage of contraceptive services for its employees and/or students--what I've called the "secondary religious accommodation"; and (iii) proposed regulations issued in August 2014 concerning which for-profit employers can also avail themselves of that same religious accommodation with respect to the coverage of contraceptive services.
The basic religious accommodation takes the form of the "augmented" accommodation I described last August--there are no material changes as far as nonprofit employers are concerned. Most importantly, the rule allows a qualifying employer to simply notify HHS that it has a religious objection to offering contraception coverage, and provide HHS with the name and contact information of its health plan’s third party administrator (TPA) or health insurance issuer. If the plan has an "issuer" responsible for payments, such as Aetna, that issuer's preexisting responsibility for providing contraceptive coverage will continue, albeit outside the auspices of the employer's plan, and without any involvement of the objecting employer. If, on the other hand, the plan is "self-insured" (that is, if the employer itself is ordinarily responsible for payments), the Department of Labor would then inform the plan's third-party administrator (if any) that it is now obliged to offer contraceptive coverage--initially from its own resources--to the organization's employees (and/or students) without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. Such notice from DOL to the TPA -- rather than any form signed or submitted by the objecting organization -- will then become a "plan instrument" that designates the TPA as an ERISA "plan administrator" for purposes of contraception coverage. The federal government would, in turn, reimburse the TPA for its payments in the form of an adjustment to the TPA’s assessed user fees for the ACA exchanges. In other words, the cost of the contraceptive coverage in the self-insured setting is ultimately borne by the government itself, rather than by the organization or by the plan TPA. And the objecting employer is cut out of the picture altogether. (I described all this in greater detail here and here; and Judge Matheson does an excellent job of it in a recent court of appeals opinion, too.)
What is new, and important, in the final regulations is this: The final rules also extend this same accommodation scheme to certain "closely held" for-profit employers with religious objections to involvement in provision of contraception coverage. The rule defines an eligible “closely held for-profit entity” as one that is not publicly traded; that has an ownership structure under which more than 50 percent of the organization’s ownership interest is owned by five or fewer individuals; and that objects to providing contraceptive coverage based on its owners’ religious beliefs. (For purposes of the five-person criterion, "family members [i.e., brothers, sisters, half-brothers, half-sisters, spouses, ancestors, and lineal descendants] count as a single owner.") According to the preamble, this definition "includes for-profit entities that are controlled and operated by individual owners who are likely to have associational ties, are personally identified with the entity, and can be regarded as conducting personal business affairs through the entity"--the very types of closely held for-profit entities contemplated by the Supreme Court's decision in Hobby Lobby.
The government has concluded that this definition encompasses virtually all of the for-profit employers likely to have religious objections to providing contraceptive coverage--a group that the government estimates will consist of 87 or so entities (perhaps a bit more). As of now it is uncertain how many, if any, of these few dozen for-profit employers will continue to challenge the accommodation as a violation of their RFRA rights. If the nonprofit context is any indication, most objecting for-profit employers will implement the accommodation--in which case their employees will finally receive cost-free contraception coverage, even if there was an earlier Hobby Lobby-like injunction in place--but but a small percentage will continue to press RFRA challenges.
II. Appellate decisions and pending decisions in nonprofit cases
Since the government promulgated the augmented accommodation last August, five [UPDATE: seven] federal courts have issued seven [UPDATE: nine] decisions involving nonprofit organizations that are continuing to press RFRA challenges to the religious accommodation--most involving consolidated cases with numerous plaintiff organizations. Each and every court of appeals has rejected the RFRA claims on the ground that the plaintiffs have not carried their burden of alleging a substantial burden on their religious exercise. Furthermore, all of the court majorities have insisted that their decisions are based not upon a disagreement about the theological merits of religious ideas or disagreements about particular religious notions of what constitutes impermissible "complicity" in sin; instead, the courts have explained that the plaintiffs' articulated theories of how they are complicit in the use of contraception are premised on mistakes of fact and law. i.e., on misunderstandings of just how the augmented accommodation and related laws operate.
Only one of the seven appellate courts--the U.S. Court of Appeals for the District of Columbia Circuit--has gone on to also address the other half of the RFRA equation: the D.C. Circuit held that even if the accommodation did impose a substantial burden on one or more plaintiffs' religious exercise, the government has compelling reasons for rejecting any further accommodation or exemption, and that such interests cannot be adequately advanced by any less restrictive means.
In chronological order, here are the courts of appeals' decisions:
a. On November 14, 2014, in Priests for Life v. HHS, a panel of the D.C. Circuit rejected RFRA claims on the merits (not at the preliminary injunction stage) in several consolidated cases brought by eleven Catholic organizations that consider all methods of contraception sinful. The cases run the gamut of the various contexts in which the augmented accommodation is applied: They involve health insurance plans covering both employees and students. Some of the plans are insured; others are "self-insured" and have third-party administrators; still others are "church plans" exempt from ERISA regulation (and thus as to which the government does not assert the authority to require TPAs to provide contraception coverage). The Roman Catholic Archbishop of Washington is also one of the plaintiffs: Even though it is entirely exempt from the regulation (that is, its employees are not entitled to contraception coverage), it alleges that its religious exercise is burdened because it is the sponsor of a church plan used by some of the other plaintiffs.
Judge Pillard wrote the opinion; it was joined by Judges Rogers and Wilkins. As I noted above, the court held both that the plaintiffs failed to allege a substantial burden on religious exercise because their theories of "complicity" with the use of contraception are premised upon legal and factual errors about the operation of the regulations, and that, in any event, the regulations advance compelling state interests that can't be adequately advanced by any less restrictive means. Notably, the court also rejected a statutory challenge to the accommodation as applied to self-insured plans: It held (see pp. 42-43) that the Department of Labor has the authority under ERISA to require TPAs to provide contraception coverage outside the context of the employer's plan when the employer invokes the opt-out accommodation.
In May, the full D.C. Circuit denied a petition for rehearing en banc in Priests for Life, discussed below.
b. On February 11, 2015, in Geneva College v. Secretary of HHS, the U.S. Court of Appeals for the Third Circuit overturned RFRA-based preliminary injunctions that district judges had issued in favor of a Presbyterian college (Geneva College) that objects to four methods of contraception (Plan B, ella, and two intrauterine devices), and preliminary and permanent injunctions in favor of four Catholic institutions that object to all forms of contraception. Geneva College has insured plans for both its students and employees; the Catholic organizations have self-insured plans for their employees.
Judge Rendell wrote the opinion, which Chief Judge McKee and Judge Sloviter joined. The court held that the plaintiffs' theory of substantial burden rested upon a misunderstanding of how the regulations operate.
c. On May 19, 2015, in University of Notre Dame v. Burwell, the U.S. Court of Appeals for the Seventh Circuit affirmed denial of preliminary relief to the University of Notre Dame with respect to both its insured student plan and its self-insured employee plan. Judge Posner wrote the majority opinion. Judge Hamilton joined Judge Posner's opinion, and also wrote an extensive concurring opinion. Judge Flaum dissented.
Because the court rejected Notre Dame's RFRA claims based on its failure to demonstrate any substantial burden on religious exercise, it did not analyze the compelling interest/least restrictive means question. Judge Posner did, however, include the following, which would be of obvious importance on the compelling interest side of the RFRA equation:
About half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps 102–03 (2011), www.nap.edu/catalog.php?record_id=13181; Lawrence B. Finer & Mia R. Zolna, “Shifts in Intended and Unintended Pregnancies in the United States, 2001– 2008,” 104 Am. J. Pub. Health S43, S44 (2014). Many of the unintended pregnancies are teen pregnancies, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. John S. Santelli & Andrea J. Melnikas, “Teen Fertility in Transition: Recent and Historical Trends in the United States,” 31 Ann. Rev. Pub. Health 371, 375–76, 379 (2010). Because out-of-pocket expenditures on female contraceptives can be substantial for many women, see Su-Ying Liang et al., “Women’s Out-of-Pocket Expenditures and Dispensing Patterns for Oral Contraceptive Pills Between 1996 and 2006,” 83 Contraception 528, 531 (2011), the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions. See Jeffrey F. Peipert et al., “Preventing Unintended Pregnancies by Providing No-Cost Contraceptives,” 120 Obstetrics & Gynecology 1291, 1295–96 (2012). Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.” Susan A. Cohen, “The Broad Benefits of Investing in Sexual and Reproductive Health,” 7 Guttmacher Report on Public Policy, March 2004, pp. 5, 6; see also Martha J. Bailey et al., “The Opt-in Revolution? Contraception and the Gender Gap in Wages,” 4 AmericanEconomic Journal: Applied Economics, July 2012, pp. 251–52. For a compact and convincing summary of the benefits to society in general and women in particular of inexpensive access to contraception, see Priests for Life v. U.S. Dept. of Health & Human Services, 772 F.3d 229, 257–64 (D.C. Cir. 2014).
[UPDATE: On July 24, 2015, the court of appeals denied a petition for rehearing en banc; none of the court’s active judges so much as requested a vote on whether to rehear the case.]
d. On May 20, 2015, in Priests for Life, the D.C. Circuit denied a petition for rehearing en banc by a 6-2-1 vote (Judges Srinivasan and Millett recusing). Judge Pillard again wrote an opinion for herself and Judges Rogers and Wilkins, concurring in the denial of rehearing en banc, in order to address arguments raised in the dissenting opinions and "to underscore why our court’s approach accords with the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)."
Judge Brown dissented, joined by Judge Henderson. Judge Kavanaugh wrote a separate, interesting dissent of his own. He agreed with Judge Brown that the plaintiffs had sufficiently alleged how the accommodation would create a substantial burden on their religious exercise. But he also read the Supreme Court's decision in Hobby Lobby to "at least strongly suggest that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations"; and he further wrote that, even in light of RFRA, "[t]he Government may of course continue to require the religious organizations’ insurers to provide contraceptive coverage to the religious organizations’ employees, even if the religious organizations object" (emphasis added). So if RFRA would not preclude the government from thereby shifting the burden to the insurers, why, then, did Judge Kavanaugh dissent, rather than concur with Judge Pillard? Because he concluded that the government did not have a compelling interest in requiring the objecting employers to identify the insurers (or TPAs) that are to provide such contraception coverage. That is to say, Judge Kavanaugh understood the employers to be objecting to being compelled to assist the government by "point[ing] to," i.e., identifying, the entity that would be responsible for providing coverage, thereby making it administratively easier for the government to ensure the provision of contraceptive coverage to employees.
If such "compelled identification" of insurers were truly what the plaintiffs in these cases were complaining about, Judge Kavanaugh would appear to have a good point: As he noted, "the Government can independently determine the identity of the organizations’ insurers"--say, by asking for documentation from some of the beneficiaries--"and thereby ensure that the insurers provide contraceptive coverage to the organizations’ employees." That alternative might "create some administrative inconvenience for the Government," but Judge Kavanaugh is probably correct that such inconvenience would not be so significant as to render the accommodation scheme unworkable. [NOTE: The preamble to the final regulation states that public comments on the proposed rule "did not identify . . . any alternative means the Departments can use to obtain the required information." 80 Fed. Red. 41323. Frankly, it's hard to imagine the Departments, with all of their resources, would lack any practical way of identifying TPAs and issuers if an employer did not do so; but of course if the government could explain why such identification is impracticable, that would affect the force of Judge Kavanaugh's analysis.]
However, even if he were correct that the government does not have a compelling need for objecting employers to identify their TPAs and issuers, I think Judge Kavanaugh has misconstrued the plaintiffs' objections: They are not complaining about having to identify their plans' issuers and TPAs--indeed, almost all the plaintiffs in the D.C. Circuit cases have voluntarily named those entities in their complaints and in the subsequent petitions for certiorari! And, because their RFRA complaints are not about such "compelled identification," but instead about the insurers' subsequent provision of contraception coverage to the organizations' employees, the plaintiffs' RFRA claims would not be affected even if, as Judge Kavanaugh suggests, the government did not require them to identify their plan insurers. Therefore, Judge Kavanaugh's opinion in fact cuts against the plaintiffs, because he would not construe RFRA to preclude the government from doing what the plaintiffs do object to--namely, "requir[ing] the religious organizations’ insurers [and TPAs] to provide contraceptive coverage to the religious organizations’ employees, even if the religious organizations object."*
e. On June 22, 2015, in East Texas Baptist Univ. v. Burwell, the U.S. Court of Appeals for the Fifth Circuit overturned RFRA-based injunctions in consolidated cases involving an array of plaintiff organizations. These cases, like those in the D.C. Circuit, involve an array of types of insurance plans and different sorts of religious objections. Judge Jerry Smith wrote the opinion, joined by Judges Reavley and Graves. The court concluded that the plaintiffs "have not shown and are not likely to show that the requirement substantially burdens their religious exercise under established law."
f. On July 1, 2015, in Wheaton College v. Burwell, the Seventh Circuit affirmed the denial of a preliminary injunction sought by Wheaton College. Recall that, a few days after Hobby Lobby, the Supreme Court had granted Wheaton College a temporary injunction, thereby preventing enforcement of the original form of the religious accommodation. Subsequently, however, the government modified the form of the accommodation in accord with the Supreme Court’s decision. Wheaton College continued to challenge even the augmented accommodation scheme, as applied to four methods of contraception. The court rejected that challenge.
As in Notre Dame, Judge Posner wrote the majority opinion; it was joined by Judges Williams and Hamilton. Judge Posner's opinion in Wheaton College is consistent with his opinion in Notre Dame--he decided the case on the failure of Wheaton College to demonstrate any "substantial burden" on its religious exercise, explaining that the accommodation scheme would not "use" the College or its plan in order to provide coverage to students and employees.
g. On July 10, 2015, in Little Sisters Home for the Aged v. Burwell, the U.S. Court of Appeals for the Tenth Circuit resolved several consolidated cases against the RFRA claimants at the preliminary injunction stage. Judge Matheson wrote a very long opinion for the court, joined by Judge McKay; it is extremely thorough and comprehensive, painstakingly describing the different issues raised by the various sorts of insurance plans at issue in the case. The court held that the government's augmented accommodation scheme does not substantially burden any of the plaintiffs' religious exercise under RFRA. The court also proceeded to turn aside several constitutional challenges some of the plaintiffs had brought under the Religion and Speech Clauses of the First Amendment.
Senior Judge Bobby Ray Baldock concurred with the majority's opinion and judgment respect to the plaintiffs with insured plans, and with respect to Little Sisters of the Poor, which operates a self-insured "church plan" whose third-party administrator, Christian Brothers Services, has said it will not offer contraceptive coverage if and when Little Sisters invokes the opt-out accommodation. (That is to say, the government does not assert the authority to ensure that the Little Sisters employees will receive cost-free contraception coverage, so there's no live controversy in that case. I discuss these idiosyncracies of the Little Sisters case here and here.) He agreed that these plaintiffs' RFRA claims should be rejected.
Judge Baldock dissented, however, with respect to the RFRA claims of four of the plaintiffs with self-insured plans--Southern Nazarene University, Reaching Souls, Truett-McConnell College, and Mid-America Christian University--each of which objects to the four methods of contraception at issue in Hobby Lobby and other cases involving non-Catholic plaintiffs. Southern Nazarene has a self-insured plan whose TPA would be required to provide contraceptive coverage if Southern Nazarene opts out. The other three plaintiffs identified by Judge Baldock have "church plans," and therefore the government cannot require their plans' TPAs to provide coverage; one of those TPAs, however (Highmark), apparently has indicated it will provide such coverage to employees voluntarily if those four organizations opt out.
Judge Baldock's partial dissent with respect to these four plaintiffs is premised on his conclusion that their invocation of the accommodation--their opting out--would be a "but-for" cause of their employees' contraceptive coverage; he reasons that if the organizations declined to either opt or offer such coverage, the government would be powerless to require anyone else, including the plan TPAs, to offer such coverage. "[T]he government cannot shift the ability (let alone the responsibility) to provide the coverage to non-objectors unless the self-insured plaintiffs opt out," according to Judge Baldock. "Opting out is thus the only way their plan participants and beneficiaries may receive the coverage. Put another way, if the self-insured plaintiffs do not opt out, who will provide the coverage for their plan participants and beneficiaries? The answer: no one. The self-insured plaintiffs cannot do so per their faith; the TPAs cannot do so per the law." (As noted below, I'm not sure this legal predicate is correct.) Thus, writes Judge Baldock, "[u]nlike the insured plaintiffs, the ACA leaves the self-insured plaintiffs in a position where, by refusing to opt out, they can prevent their plan beneficiaries from receiving the objected-to coverage the beneficiaries are entitled to and would otherwise receive under the ACA. In other words, their plan participants and beneficiaries will receive the coverage only if they opt out as the government commands. This makes their opting out a but-for cause of the receipt of the coverage." And that, according to Judge Baldock, makes plausible the claims of these four plaintiffs--unlike the other Tenth Circuit plaintiffs, whose opting out would not be a but-for cause of coverage--that the accommodation would substantially burden their religious exercise. He then concluded that those four plaintiffs were likely to prevail on their RFRA claims in light of governing Tenth Circuit precedent--precedent that the Supreme Court is not likely to affirm--that the government has no compelling interest in ensuring cost-free contraceptive
coverage to their employees.
I will address Judge Baldock's partial dissent in greater detail in a follow-up post.
[UPDATE: h. On August 7, 2015, in Catholic Health Care System v. Burwell, the U.S. Court of Appeals for the Second Circuit unanimously ruled, on the merits, that the augmented accommodation "do[es] not substantially burden Plaintiffs’ religious exercise in violation of RFRA," in a case brought by two high schools and two health care organizations, all of which use self-insured "church plans."
In an opinion by Judge Pooler, the court of appeals reasoned, as have the other courts, that “a religious objector’s submission of the form or letter does not, as a legal matter, trigger or facilitate the provision of contraceptive coverage. Rather, contraceptive coverage occurs through operation of federal law. When third parties step in and provide contraceptive coverage after Plaintiffs opt out, they do so not because Plaintiffs have opted out, but rather because federal law requires or incentivizes them to provide such coverage. The accommodation functions not as a 'trigger,’ but rather as a means of identifying and exempting those employers with religious objection.” Toward the end of its opinion, the court addressed the argument that is increasingly becoming the focus of the nonprofits' arguments--namely, that the complicity arises not because opting out results in someone else offering contraceptive coverage, but instead because opting out can result in coverage being offered by the very company that the employer has contracted with to act as the third-party administrator for its employee plan (if that administrator chooses to do so: because these are church plans, the government cannot require the TPA to do so). The court rejected the idea that this particular relationship can result in a substantial burden: "Plaintiffs’ relationships with their employees and third-party administrators," wrote Judge Pooler, "do not provide them an avenue to dictate these entities’ independent interactions with the government, even if Plaintiffs find these actions objectionable."
i. On August 21, 2015, in Michigan Catholic Conference v. Burwell,the U.S. Court of Appeals for the Sixth Circuit rejected RFRA claims in consolidated cases the Supreme Court had remanded to the court of appeals before the government amended its religious accommodation. The court affirmed the district court's denial of a preliminary injunction to five organizations with insured plans--Catholic Charities of Tennessee, Inc., Camp Marymount, Inc., Mary, Queen of Angels, Inc., St. Mary Villa, Inc., and Aquinas College--and one organization (Catholic Charities Diocese of Kalamazoo) with a self-insured plan, all of which object to all approved forms of contraceptive methods.
The court of appeals concluded that the plaintiffs were unlikely to prevail on the merits because they would be unable to show a substantial burden on their religious exercise. In most respects, the opinion resembles those of the other courts of appeals. One particular aspect of the opinion is noteworthy: In their supplemental brief, the plaintiffs had argued that, even with the accommodation, they would be complicit in sinful conduct because they would be responsible, not for the fact that their employees would use contraception (something that would happen anyway), or for the fact that those employees would be reimbursed for such contraception (ditto), but instead for the fact that a particular insurance company (or TPA) would be providing coverage to particular employees:
[I]t is mistaken to suggest that Plaintiffs’ TPAs and insurers somehow have an “independent” obligation to provide the objectionable coverage to Plaintiffs’ employees regardless of whether Plaintiffs comply with the Nonprofit Mandate. The law is clear that no such obligation exists unless Plaintiffs (a) maintain an objectionable contractual relationship with their insurers or TPAs and then (b) submit the objectionable “self-certification” or “notice.”
Most obviously, if Plaintiffs stopped offering health plans, their insurers and TPAs would have no obligation whatsoever to provide Plaintiffs’ beneficiaries with the objectionable coverage. The Government has never suggested otherwise. It is thus undeniable that the provision of the objectionable coverage by Plaintiffs’ TPAs and insurers is entirely contingent on Plaintiffs’ actions. Under these circumstances, Plaintiffs believe the decision to offer health plans entangles them in wrongdoing and facilitates delivery of the objectionable coverage, thus making them complicit in sin.
As I've explained in previous posts, plaintiffs in these cases are increasingly invoking this "matchmaker" argument as their principal theory of complicity (perhaps because all of their many other theories are untenable). The Sixth Circuit's response was quite cursory:
It is true that if Plaintiffs decided not to offer health coverage at all, then they would not have to offer coverage for contraceptives. But they would also be breaking the law. RFRA does not give parties license to break the law.
This treatment is unsatisfactory in several respects. First, if plaintiffs chose not to offer health coverage, they would not be violating the law. (See my posts here and here.) Second--although it's really neither here nor there--the whole point of RFRA, in cases where plaintiffs prevail, is that it does in effect give parties license to "break" the law (or, more accurately, it affords them an exemption from what would otherwise be a legal requirement). More to the point, the court's rejection is simply not responsive to the substance of plaintiffs' argument. That argument, as explained above, is that particular aspects of their conduct--choosing to offer their employees access to a health insurance plan, and choosing to contract with a particular third party to be the plan insurer (or TPA)--cumulatively causes one third party (the insurer) to compensate another third party (the employee) for her purchase of contraception. The court of appeals does not really contend with this argument about "matchmaker" causation. (I have offered some preliminary thoughts about possible responses to this argument at the end of this post. In addition, see these passages from the Seventh Circuit's opinion in Notre Dame:
It’s not even clear that by forcing Aetna/Meritain to provide Notre Dame’s students and staff with contraception coverage the government is forcing Notre Dame to do business with an entity that is providing an objectionable service to the Notre Dame community. For the government authorizes a third-party administrator to “arrange for an issuer or other entity” to pay for contraception coverage and bill the expense to the government. 29 C.F.R. § 2590.715- 2713A(b)(2)(ii). Notre Dame thus could ask Meritain to outsource contraception coverage for both students and staff to an entity that does no business with Notre Dame. The university would have no contractual relationship with that entity and so would not be involved even indirectly in the provision of contraceptive coverage to its students and employees. . . .
Notre Dame could as an alternative to the official accommodation direct Meritain to delegate to companies that have no contractual relationship with Notre Dame (as Aetna and Meritain do) the provision of contraception coverage to the university’s students and staff. Then Notre Dame would be outside the loop.)]
* * * *
In addition to these nine decisions, there are other cases pending in [UPDATE: three] courts of appeals. On December 3, 2014, another panel of the U.S. Court of Appeals for the Seventh Circuit (Judges Manion, Rovner and Hamilton) heard oral arguments in the consolidated cases Grace Schools v. Burwell and Diocese of Fort Wayne-South Bend v. Burwell (audio here). The parties in that case later filed supplemental pleadings addressing the impact of the court's decision in Notre Dame.On December 10, 2014, a panel of the U.S. Court of Appeals for the Eighth Circuit (Judges Wollman, Colloton and Benton) heard oral arguments in Sharpe Holdings, Inc. v. HHS and Dordt College v. Burwell (audio here and here). Finally, on February 4, 2015, a panel of the U.S. Court of Appeals for the Eleventh Circuit (Judges Pryor, Tjoflat and Anderson) heard oral arguments in Eternal Word Television Network v. Burwell and Roman Catholic Archdiocese of Atlanta v. Burwell.
I am not aware of any cases that have been briefed or argued in the First, Fourth and Ninth Circuits.
III. The pending cert. petitions
Four [now six] petitions for certiorari have already been filed in the Supreme Court:
a. On May 29, 2015, the Catholic plaintiffs in the Third Circuit case (that is, all the plaintiffs except Geneva College) filed a petition in No. 14-1418, Zubik v. Burwell (Paul Pohl, Counsel of Record).
b. On June 9, 2015, one party in the D.C. Circuit litigation, Priests for Life, filed a stand-alone petition, No. 14-1453, Priests for Life v. HHS (Robert Muise, Counsel of Record).
c. On June 19, 2015, ten of the other plaintiffs in the D.C. Circuit litigation filed a petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell (Noel Francisco, Counsel of Record). The petitioners in this case include, most importantly, Catholic University, which offers health insurance coverage to its employees and students under insured plans, and Thomas Aquinas College, which offers coverage to its employees under a self-insured plan that is not a “church plan.” The petitioners also include several organizations that use "church plans" sponsored by the Roman Catholic Archbishop of Washington, as well as the Archdiocese itself, which is exempt altogether from the contraceptive-coverage regulation.
d. On July 8, 2015, three of the parties in the Fifth Circuit litigation--Houston Baptist University, East Texas Baptist University and Westminster Theological Seminary--filed a petition in No. 15-35, Houston Baptist Univ. v. Burwell (Paul Clement, Counsel of Record).
e. On July 23, 2015, the parties in one of the consolidated cases in the Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105, Little Sisters of the Poor Home for the Aged v. Burwell (Paul Clement, Counsel of Record). As noted above, all three judges on the Tenth Circuit panel, including Judge Baldock, rejected Little Sisters' claim on the theory that there can be no substantial burden in that case because the Little Sisters employees will not receive cost-free contraception coverage in any event: Little Sisters uses a church plan administered by Christian Brothers Services, which has itself made clear that, because of its own religious objections, it will not provide contraceptive coverage if the Little Sisters were to opt out--and the government may not compel Christian Brothers to offer such services.
Little Sisters nevertheless argues in its petition (see footnote 2) that its opt-out might still result in coverage for its employees, because its plan has another TPA, Express Scripts, that has not made the same representation as Christian Brothers; and at oral argument in the Tenth Circuit counsel for the government represented that the Department of Labor would ask Express Scripts to provide coverage to those employees even though the government has no legal authority to require Express Scripts to do so. The judges on the court of appeals not surprisingly disregarded Little Sisters' argument respecting Express Scripts; as I blogged back in January 2014, and as the government argued to the court of appeals, "Plaintiffs made no reference to Express Scripts in their complaint or in their preliminary injunction filings, and allegations about this organization cannot be a basis for challenging the court's denial of the preliminary injunction. . . . Moreover, plaintiffs bear the burden of establishing their entitlement to injunctive relief, which they have wholly failed to do with respect to any possible coverage by Express Scripts." That is to say, even assuming that Express Scripts is a third-party administrator, the mere possibility that it might voluntarily provide contraceptive coverage to Little Sisters' employees, absent any regulatory compulsion to do so, presumably would be insufficient grounds to reverse the preliminary injunction, given that Little Sisters bears the burden of establishing its entitlement to injunctive relief.
f. On July 24, 2015, four university plaintiffs in the Tenth Circuit case filed another petition, No. 15-119, Southern Nazarene Univ. v. Burwell (David Cortman, Counsel of Record).Two of those plaintiffs, Oklahoma Wesleyan University and Oklahoma Baptist University, use insured plans; all three judges on the court of appeals rejected their RFRA claims. The other two petitioners are among the four plaintiffs as to which Judge Baldock dissented (see above)--Southern Nazarene University, which uses a self-insured plan, and Mid-America Christian University, which uses a self-insured church plan. All four of these petitioners object to the regulation only as applied to the four contraceptive methods at issue in Hobby Lobby--ella, Plan B, and two types of IUDs.]
* * * *
[UPDATE: The government has already filed two briefs in opposition to these petitions.
On August 12, 2015, the Solicitor General filed this brief in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life. He argues in that brief that Supreme Court review is not warranted because all six courts of appeals to have ruled as of that date had "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries." The SG does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell, principally for the reasons I discuss below. [UPDATE: On August 25, petitioners filed their reply brief in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell.]
On August 20, 2015, the SG filed this brief in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the Third Circuit in Geneva College. That brief largely tracks the earlier brief in the D.C. Circuit cases. The SG argues at the end of the brief that even if the Court were to decide to grant a petition, it should not be these, because--in contrast to No. 14-1505--they do not involve any self-insured non-church plans, and because--again in contrast to No. 14-1505--the Third Circuit did not address the compelling-interest/least-restrictive-means aspects of the RFRA question.
* * * *
The Court will likely consider whether to grant some or all of the petition at its "long conference" at the beginning of October, or sometime later in October. The Court may very well choose not to hear any of the cases unless and until there's a circuit split. Therefore, what happens in the other three cases currently pending in the courts of appeals (see above) could determine whether and when the Court takes up the issue.
If the Court does eventually grant one of the current petitions, I'd think it would likely be No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell, principally for the reasons offered in Part IV of that petition, including these:
-- The case was decided on the merits (cross-motions for summary judgment), not on a motion for preliminary relief.
-- The petitioners present the full range of insurance arrangements that have given rise to RFRA claims in the nonprofit context, including insured plans, self-insured plans, and self-insured church plans. (As the opinions in the recent Tenth Circuit case demonstrate, the RFRA analysis is very different with respect to each distinct sort of plan.) This petition also involves both employee and student plans.
-- The petitioners object to the entire range of the 18 covered contraception methods, not only the four at issue in Hobby Lobby and other cases.
-- Judge Pillard's two opinions are very thorough (and she addressed the statutory claim, as well). The en banc petition also prompted two distinct dissenting opinions, by Judges Brown and Kavanaugh, which differ from one another in important respects.
-- Most importantly, the D.C. court of appeals, unlike the other courts of appeals thus far, squarely addressed both the substantial-burden and so-called "strict scrutiny" components of RFRA.
The Roman Catholic Archbishop petition includes virtually all of the arguments I think we can expect to see emphasized by religious objectors if and when the Supreme Court decides to consider the RFRA question. Therefore, in order to close this post, I thought it would be useful to identify them.
Substantial Burdens and Complicity
As I noted in a pair of posts last year (here and here), the plaintiffs' lawyers in the various nonprofit cases have offered up an extraordinary array of theories of how each iteration of the government's regulation would impose a substantial burden on their clients' religious exercise by coercing them to engage in a form of "complicity" in employees' use of contraception that their religion allegedly forbids. They have demonstrated remarkable ingenuity: Every time the government has amended its regulation to further insulate objecting employers from their employees' use of contraceptives, the lawyers have responded with new arguments as to how and why the agencies continue to compel the employers to "cooperate with evil" in a way that allegedly violates their religious obligations. Moreover, in recent decisions, noted above, Judges Kavanaugh and Baldock have offered additional theories of complicity that even the lawyers and their clients had not previously articulated or emphasized--theories that we might expect the lawyers to further emphasize in any Supreme Court litigation. (The theories recently offered in the petitioners' briefs have rarely if ever been supported with citations to record evidence of the plaintiffs' theological beliefs respecting the new accommodation--the complaints and declarations in the record were filed long before the government augmented its regulation. For understandable reasons, however, the government has not challenged the sincerity of the views described by the plaintiffs' lawyers; therefore, as the cases come to the Supreme Court, we must assume that the leaders of the plaintiff organizations are truly of the view that it would be religiously forbidden for their organizations to invoke the government's accommodation and thereby opt out of having their insurance plans offer contraception coverage, for the reasons offered by their attorneys . . . as implausible as that might seem.)
I think it's fair to assume that the complicity arguments currently being invoked in the Supreme Court on behalf of the Archdiocese of Washington, D.C., Catholic University, Thomas Aquinas College, and seven other Catholic petitioners, are those that the Court is most likely to be asked to consider if and when it hears a nonprofit case on the merits. Accordingly, I'll try to describe here the arguments that I've been able to tease out of the D.C. Archdiocese petition in No. 14-1505. As I'll also explain, I think the courts of appeals have been correct to reject these arguments because they are based upon misunderstandings or mischaracterizations of the operation of the augmented accommodation--on mistakes of fact and law--without any need to assess specifically religious understandings of what forms of conduct constitute impermissible "complicity" in sin:
1. According to the petition (p.5), when an eligible employer submits notification to HHS of its religious objection and thereby opts out, that organization purportedly"authorizes" or "obligates" its insurance company or third-party administrator to arrange payments for contraceptive services for beneficiaries of the employer's plan.
As I explained in "Theory Ten" of my post of last July 18, under the previous version of the accommodation, there might have been some respects in which this argument would have been valid as a technical, legal matter, but only with respect to the TPAs of self-insured plans: By filing "Form 700," the employer would not so much "authorize" or "obligate" such a TPA to provide contraception coverage in any colloquial sense, but it could be said to thereby legally "designate" the TPA as a "plan administrator" for purposes of contraception coverage, as a matter of ERISA law.
That argument was never valid, however, with respect to insured plans, whose issuers (i.e., insurance companies) have an independent legal obligation to provide contraception coverage regardless of what the employer does. And even with respect to self-insured plans, the augmented accommodation rule now forecloses this particular argument. Under the current version of the accommodation, an employer can notify HHS of its opt out, without filing Form 700, and in that case it is the Department of Labor--not the organization--that issues a notice to the TPA that becomes a "plan instrument" designating the TPA as an ERISA "plan administrator" for purposes of contraception coverage. That is to say, as a matter of law it is the regulations and the Department of Labor, if anything, that "authorize" or "obligate" the TPA to provide contraception coverage--the eligible organization is not required to do any such thing.
2. The petition asserts (pp. 1-2) that the government is "commandeering" the petitioners "and their health plans" to be "vehicles" for "delivering abortifacient and contraceptive coverage."
There is simply no sense, however, in which the government is commandeering the organizations themselves as "vehicles" for such coverage--under the regulation, they are expressly and repeatedly dissociated from such coverage in virtually every way imaginable. And as for their health insurance plans, the same is certainly true with respect to insured plans (which is an option that any employer can elect). As I explained in the "Insured Plans" section of this post, when an organization opts out, the issuer of an ensured plan must reimburse employees (or students) for contraceptive services without imposing any premium, fee, cost-sharing requirements or other fees on the employer (or school), the insurance plan, or the employee (or student) beneficiaries; must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the * * * plan,” 45 C.F.R. 147.131(c)(2)(i)(A); must “segregate premium revenue collected from the eligible organization from the monies used to provide payments for contraceptive services,” 45 C.F.R. 147.131(c)(2)(ii); must notify plan participants and beneficiaries of the availability of separate payments for contraceptive services; and “must specify" in such notice "that the [employer] does not administer or fund contraceptive benefits, but that the issuer provides separate payments for contraceptive services[,]” 45 C.F.R. § 147.131(d).
The petition notes, however (p.6), that "in the self-insured context," "[t]he Government concedes that . . . 'the contraceptive coverage is part of the [self-insured organization's health] plan.’" The quotation is from a hearing at which government counsel apparently said that “[i]n the self-insured case, technically, the contraceptive coverage is part of the plan, [even though] the responsibility to make the payments ... is entirely the [third-party administrator's].” Pet.App.145a. Assuming this is formally correct as a matter of ERISA law (which I don't know), it's hard to imagine that such legal characterization of which "plan" the coverage is "part of" for purposes of ERISA can possibly bear on the employer's responsibility for the contraceptive reimbursement on any religious view of complicity, because everyone will understand that the employer and its property and its funds have absolutely nothing to do with the payments for contraception. As I wrote last year:
This is not a case, for instance, in which a person’s labor or real property is being used for sinful ends. And to the extent the argument here is that observers (such as employees) will understand the organization to have ratified or blessed the contraceptive care services because they are, for ERISA purposes, being offered in connection with the organization’s employee benefit plan, the accommodation is carefully designed to dispel any such inaccurately assumed association or approval: Like the payments for contraceptive services under the accommodation for insured plans, the payments the TPA makes to the organization’s employees are not health insurance policies. Moreover, the TPA must provide to plan participants and beneficiaries written notice of the availability of such separate payments for contraceptive services separate from any application materials distributed in connection with enrollment in the group health coverage and, most importantly, such notice must specify that the employer organization does not administer or fund contraceptive benefits, such as with the following model language offered in the regulation:
“Your employer has certified that your group health plan qualifies for an accommodation with respect to the federal requirement to cover all Food and Drug Administration-approved contraceptive services for women, as prescribed by a health care provider, without cost sharing. This means that your employer will not contract, arrange, pay, or refer for contraceptive coverage. Instead, [name of third party administrator] will provide or arrange separate payments for contraceptive services that you use, without cost sharing and at no other cost, for so long as you are enrolled in your group health plan. Your employer will not administer or fund these payments.”
This notice ought to be sufficient to allay any concern that employees will misunderstand whether the employer approves of, or is involved in or responsible for, the contraceptive coverage. Moreover, as noted above, nothing prevents the employer from taking additional steps to further emphasize to its employees, or to any other audience, that it has a religious objection to the use of contraception, and/or to the contraceptive services that federal law guarantees.
This is why even a very conservative judge such as Jerry Smith was so quick in the East Texas Baptist case to reject the argument "that the accommodation uses their plans as vehicles for payments for contraceptives." "[T]hat is just what the regulations prohibit," explained Judge Smith. "Once the plaintiffs apply for the accommodation, the insurers may not include contraceptive coverage in the plans. The insurers and third-party administrators may not impose any direct or indirect costs for contraceptives on the plaintiffs; they may not send materials about contraceptives together with plan materials; in fact, they must send plan participants a notice explaining that the plaintiffs do not administer or fund contraceptives. The payments for contraceptives are completely independent of the plans." (Emphasis added.)
Judge Posner put the point this way with respect to Wheaton College:
[W]hen Wheaton College tells us that it is being
“forced” to allow “use” of its health plans to cover emergengency contraceptives, it is wrong. It’s being “forced” only to notify its insurers (including third-party administrators), whether directly or by notifying the government (which will forward the notification to the insurers), that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans, which remain in force, so far as contraceptive coverage is concerned, only for the contraceptives that the college does not disapprove of on religious grounds. The college doesn’t even have to inform the insurers of their obligation to provide coverage; the government . . . does that if the college has told the government that it refuses to provide the coverage.
Once informed by the government of the college’s objection, the insurers are required by the Affordable Care Act and implementing regulations to notify the members of the college community of their right to coverage by the insurers. In deference to religious sensibilities the government directs the insurers to separate notification to the community members from the insurers’ communications with them concerning the college’s health plans, and to include a statement that the college is not funding or administering contraceptive (in Wheaton’s case just emergency-contraceptive) coverage. 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d). Call this “using” the health plans? We call it refusing to use the health plans.
(Judge Posner later wrote that "[w]hat had been Wheaton’s plan, so far as emergency contraception was concerned, the Affordable Care Act made the government’s plan when Wheaton refused to comply with the Act’s provision on contraception coverage.")
Recall also that, to the extent an employer nonetheless fears that its self-insured plan is being "used" as a "vehicle" for contraceptive coverage, the employer is free to switch to an insured plan, as to which the technical legal predicate for such an argument is not even apposite.
3. To similar effect, the petition states (p.6) that under either sort of plan, "payments for contraceptive coverage are available to beneficiaries only 'so long as [they] are enrolled in [the religious organization's] health plan'" (quoting 29 C.F.R. § 2590.715-2713A(d)). Best I can tell, this sentence is designed to convey the idea that, under the accommodation, the beneficiaries will receive reimbursement for the purchase of contraceptives by virtue of the fact that the organization has included them in its insurance plan.
If so, that would be simply wrong--indeed, a disingenuous misreading of the regulation. What section 2590.715-2713A(d) requires, instead, is simply that the TPA or insurance issuer, in its contraception notice to beneficiaries, explain that it (the issuer or TPA), rather than the employer itself, "will provide or arrange separate payments for contraceptive services that you use, without cost sharing and at no other cost, for so long as you are enrolled in your group health plan. Your employer will not administer or fund these payments." In other words, all that turns on a beneficiary's continued enrollment in an objecting employer's plan is merely the fact that the particular TPA or issuer will provide the payments for contraception; such enrollment has no effect on the beneficiary's eligibility for such payments writ large. If, for example, an employee goes to work for another employer, or becomes unemployed, she will receive cost-free contraceptive coverage from her new employer's plan, or from Medicare or Medicaid, or from another plan that she purchases on an exchange. Payments will "be available" to her no matter what happens, whether she remains a beneficiary of the employer's plan or not. Her enrollment, in other words, is not a "but for" cause of her reimbursement for the costs of contraception. The petition's suggestion to the contrary is simply misleading.
4. The petition suggests that, in the case of a self-insured plan, the organization's opting out would be the but-for cause of the third-party administrator's legal authority to to provide contraceptive coverage (p.6): "[T]he TPA of a self-insured health plan is barred from providing contraceptive benefits to the plan beneficiaries unless the sponsoring organization provides the self-certification or notification."
I do not know whether this is true as a matter of law. The petition does not cite any legal authorities stating that a TPA may not otherwise provide such coverage voluntarily if it wishes to do so, even if the employer does not opt out. But even if that is a correct statement of law, what of it? To be sure, on this view, the employer's opt-out would be a but-for cause of the fact that a particular entity (e.g., Aetna), rather than another, will provide contraceptive reimbursement to a particular group of employees. But how could that--the identity of the provider, distinct from the employer itself--possibly affect whether the employer is complicit in the conduct that is thought to be sinful, namely, the use of contraceptives, when that particular identity of provider does not affect whether or not coverage for such contraceptives will be available to the beneficiaries? The petition does not say. As I wrote last year: "Thomas Aquinas College and the other plaintiffs haven't offered any explanation for why, according to their religion, the College's responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees' eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees' contraceptive services." (Moreover, once again, this argument only applies to self-insured plans, and nothing prevents an organization from using an insured plan.)
5. Finally, the petition argues that the regulation "requires self-insured religious groups to 'contract with one or more' TPAs" (p.7, quoting 26 C.F.R. § 54.9815-2713AT(b)), which presumably would, in theory, coerce such a group to be implicated in such a TPA's eventual coverage of contraceptive methods.
Read literally, the quoted regulatory provision might be understood to support that assertion. (It provides that a self-insured group health plan can take advantage of the accommodation "if all of the requirements of this paragraph (b)(1) are satisfied," the first of which is that "the eligible organization or its plan contracts with one or more third party administrators.") But as the petitioners surely know, and as the court of appeals explained, 772 F.3d at 255, that is not the way the administrative agencies understand and administer their own regulatory scheme: They have specifically guaranteed that an organization with a self-insured plan wishing to opt out need not contract with a TPA; and in the unlikely event any organization does not enter into such a contract, and instead administers the self-insured plan itself, it (and its employees) will in effect be exempt from the contraception coverage requirement:
Although some commenters addressed the solicitation for comments on whether and how to provide an accommodation for self-insured group health plans established or maintained by eligible organizations that do not use the services of a third party administrator, no comments indicated that such plans actually exist. Accordingly, the Departments continue to believe that there are no self-insured group health plans in this circumstance. However, to allow for the possibility that such a self-insured group health plan does exist, the Departments will provide any such plan with a safe harbor from enforcement of the contraceptive coverage requirement, contingent on: (1) the plan submitting to HHS information (as described later in this section) showing that it does not use the services of a third party administrator; and (2) if HHS agrees that the plan does not use the services of a third party administrator, the plan providing notice to plan participants and beneficiaries in any application materials distributed in connection with enrollment (or re-enrollment) in coverage that is effective beginning on the first day of each applicable plan year, indicating that it does not provide benefits for contraceptive services. [78 Fed. Reg. at 39,880-39,881.]
The D.C. Archdiocese petition makes two basic arguments about why the government does not have a compelling interest in exempting the petitioners from the contraceptive coverage regulation.
First, it argues that even if the government has a general interest in affording women access to cost-free contraception through their employer-sponsored insurance plans, it has not demonstrated a compelling interest in affording such access to the particular employees and other beneficiaries of the petitioners themselves, or to the employees of Catholic nonprofits more broadly: "[T]he court did not attempt to show a lack of access to contraceptive services among Petitioners' plan beneficiaries, nor did it ask whether the Mandate would significantly increase contraception use among women who choose to work for Catholic nonprofits."
As to this argument, suffice it to say that I doubt five Justices will conclude that the government's compelling interests for women across the nation are somehow less compelling with respect to the many thousands or women who happen to work for religious nonprofits (and their dependents) but who do not share their employers' view that the use of contraceptives is sinful. To similar effect, see also this important passage from Judge Kavanaugh's separate opinion in Priests for Life:
It is not difficult to comprehend why a majority of the Justices in Hobby Lobby (Justice Kennedy plus the four dissenters) would suggest that the Government has a compelling interest in facilitating women’s access to contraception. About 50% of all pregnancies in the United States are unintended. The large number of unintended pregnancies causes significant social and economic costs. To alleviate those costs, the Federal Government has long sought to reduce the number of unintended pregnancies, including through the Affordable Care Act by making contraceptives more cheaply and widely available. It is commonly accepted that reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the number of abortions,[FN: As the panel opinion in this case accurately pointed out, as of now about 40% of all unintended pregnancies end in abortion.] and help break a cycle of poverty that persists when women who cannot afford or obtain contraception become pregnant unintentionally at a young age. In light of the numerous benefits that would follow from reducing the number of unintended pregnancies, it comes as no surprise that Justice Kennedy’s opinion expressly referred to a “compelling” governmental interest in facilitating women’s access to contraception.
In short, even if the Court did not formally hold as much, Hobby Lobby at least strongly suggests that the Government has a compelling interest in facilitating access to contraception for the employees of these religious organizations. (Emphasis added.)
Second, the petition repeats the arguments, prominent in Hobby Lobby, that the so-called "grandfathering" exception undermines the compelling nature of the government's interests. I've already discussed this argument at length (see posts here and here, for example). Thankfully, it did not appear to find favor with a majority of the Court in Hobby Lobby (see the "Underinclusiveness" section of this post); and it is unlikely to do so now.
"Less restrictive means"
The D.C. Archdiocese petition argues that the following are "less restrictive" means of ensuring cost-free access to contraception, even if the petitioners were entitled to a RFRA exemption from the regulation (quoting from a pre-Hobby Lobby/pre-Notre Dame opinion of the U.S. Court of Appeals for the Seventh Circuit): “The government can provide a ‘public option’ for contraception insurance; it can give tax incentives to contraception suppliers to provide these medications and services at no cost to consumers; [or] it can give tax incentives to consumers of contraception."
The petition acknowledges that such alternatives would require statutory amendments to, e.g., Title X, Medicaid, or the laws establishing ACA exchanges--amendments that would require substantial new appropriations and that the current Congress obviously would never enact. The Court's decision in Hobby Lobby did not resolve whether RFRA should be read to require use of such theoretical possibilities of statutory amendment and further appropriations as "less restrictive means." (See the section entitled "New Appropriations as a Less-Restrictive Alternative" in this post.)
What is more, Judge Pillard's original opinion in Priests for Life offered significant reason to doubt that such hypothetical "alternatives," even if enacted, would be as effective in advancing the government's compelling interests:
Contraceptive coverage must be effective if it is to serve the government's compelling interests, and the Departments were justified in concluding that, to be effective, the coverage must be provided to all women who want it, on the same terms as other preventive care. Providing contraceptive services seamlessly together with other health services, without cost sharing or additional administrative or logistical burdens and within a system familiar to women, is necessary to serve the government's interest in effective access. Imposing even minor added steps would dissuade women from obtaining contraceptives and defeat the compelling interests in enhancing access to such coverage. See 78 Fed.Reg. at 39,888.
The evidence shows that contraceptive use is highly vulnerable to even seemingly minor obstacles. Plaintiffs suggest that the government could offer tax deductions or credits for the purchase of contraceptive services, expand eligibility for existing federal programs that provide free contraception, allow women to submit receipts to the federal government for reimbursement, or provide incentives for pharmaceutical companies to provide contraceptives free of charge to women. Pls.' R. Br. 22. Those alternatives would substantially impair the government's interest. Plaintiffs' proposed alternatives each would add steps—requiring women to identify different providers or reimbursement sources, enroll in additional and unfamiliar programs, pay out of pocket and wait for reimbursement, or file for tax credits (assuming their income made them eligible)—or pose other financial, logistical, informational, and administrative burdens. See 78 Fed.Reg. at 39,888. Even assuming that any alternative program had or would develop the capacity to deal with an enormous additional constituency, it would not serve the government's compelling interest with anywhere near the efficacy of the challenged accommodation and would instead deter women from accessing contraception. See id.
* In the Seventh Circuit, Wheaton College apparently did raise this "compelled identification" argument at oral argument. See pages 11-12 of Judge Posner's opinion. The court rejected it, in part because Wheaton College had not offered any explanation "of why it thinks the difference between direct and roundabout identification of its insurers [is] pertinent to its religious commitments," and in part because the court "suspect[ed]" that Wheaton would not be satisfied even if the government were required, at its own expense, to discover the identity of the TPAs, "because in Wheaton’s view its notice to the government would still 'trigger' the provision of emergency-contraception to its students and employees by its insurers, albeit not pursuant to its contracts with them. Wheaton’s antipathy is to having any contractual relations with insurers who provide emergency contraception to members of the Wheaton College community."