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 is the "Zubik" in Zubik v. Burwell . . . and why is he allegedly complicit in the use of contraception? [UPDATED with list and categorization of all 37 petitioners]
As I mentioned on Friday, it’s likely that the consolidated follow-up cases to Hobby Lobby, involving nonprofit organizations’ RFRA challenges to the government’s religious accommodation, will henceforth collectively be known as Zubik v. Burwell. Which raises the obvious question: Who is Zubik, anyway?
The Most Reverend David A. Zubik is the twelfth Bishop of the Roman Catholic Diocese of Pittsburgh, named to that post by Pope Benedict XVI in 2007. Why, then, you might ask, is he a plaintiff? Don’t these cases involve the application of a regulation to institutional employers? Yes, they do. And Rev. Zubik is neither an institution nor an employer of any kind. The regulations at issue do not regulate him. He does not offer health insurance of any kind to anyone. He does not administer or run any health insurance plan. He does not contract with any insurers or third-party administrators of such a plan.
To be sure, Rev. Zubik supervises a diocese that is also a plaintiff in the Zubik case—and the Pittsburgh Diocese does have employees, and does offer a health insurance plan to those employees. The Diocese, however, is completely exempt from the contraceptive coverage regulation--in other words, its employees are not guaranteed cost-free insurance coverage for the 18 contraceptive methods covered by the regulation. It’s not obvious, therefore, why the Diocesehas been injured, either—i.e., how the government has substantially burdened the Diocese’s exercise of religion, let alone Rev. Zubik’s. (In this respect these petitioners are like many of the other named plaintiffs that have filed the seven petitions, including the Roman Catholic Archdiocese of Washington, D.C. See comprehensive listing below.)
So what is Zubik’s—and the Diocese’s—theory of how the law compels them to (in the words of their complaint) “facilitate coverage of the objectionable services” in a way their Catholic doctrine allegedly prohibits?
The Zubik/Pittsburgh Diocese theory of how the government accommodation imposes a significant burden on their own religious exercise--even though the Diocese's employees will not receive contraception reimbursement--depends upon the fact that the Diocese has chosen to operate an insurance trust, the Catholic Benefits Trust, which offers insurance plans that other employers may use. The Trust was formed in June 2013 by an agreement between the Diocese of Pittsburgh, the Diocese of Altoona-Johnstown, and the Diocese of Greensburg, in an effort to pool resources with regard to health benefits. The Trust is split into three geographic "series," and the Diocese of Pittsburgh is the sole “beneficial owner” of the "Pittsburgh Series." Pursuant to the Trust Agreement, the Bishop (Zubik) appoints the Board of Directors of the Trust, and the Board of Directors, in turn, is afforded “all powers to manage the business and affairs of the Trust.” Importantly for purposes of the complaint, however, the Pittsburgh Diocese itself retains the authority to decide which entities (employers) may participate in the trust, according to the complaint. One of the entities that the Diocese has authorized to use the Trust is one of the other plaintiffs in the Zubik case, Catholic Charities of the Diocese of Pittsburgh, Inc., a social services agency. Approximately 80 Catholic Charities employees and their dependents (a total of approximately 300 individuals) receive health insurance through a plan, the “Catholic Charities’ Health Plan,” that the Trust makes available to Catholic Charities. That insurance plan is “self-insured”—in the sense that claims are paid out by the Trust—and is administered by two third-party administrators (“TPAs”), which the plaintiffs have identified as Highmark Inc. and UPMC (see Case No. 2:13-cv-01459-AJS (W.D. Pa.), Doc. 4-10, para. 11). (TPAs are hired to perform functions such as developing networks of providers, negotiating payment rates, and processing claims.)
Under HHS’s contraceptive coverage regulations, if Catholic Charities of Pittsburgh were to “opt out” of the contraception requirement by sending a notice to HHS invoking the regulatory accommodation, then the Department of Labor would ask Highmark and/or UPMC to offer contraceptive coverage to Catholic Charities’ employees. It is important to note, however, that the Catholic Charities employees would not be guaranteed the contraception coverage. Catholic Charities’ Health Plan is what is known under ERISA as a “church plan.” And under the accommodation regulations, the federal government does not have the authority to require a TPA of a church plan (such as Highmark and UPMC) to offer contraceptive coverage to the employees. Such coverage will only occur, therefore, if a TPA voluntarily chooses to offer it. And I’m not sure the record in the Zubik case indicates whether Highmark and/or UPMC would provide the coverage if DOL requested them to do so.
Moreover, even if Highmark or UPMC did choose to offer the coverage, it could only do so without imposing any cost-sharing requirements on Catholic Charities, the Trust, the Catholic Charities Health Plan, or Catholic Charities’ employees and other beneficiaries. The TPA itself would have to provide notice of the stand-alone contraceptive coverage to the plan beneficiaries, and do so separately from any materials distributed to employees in connection with their ordinary Catholic Charities group health coverage. Furthermore, such notice to the employees would have to specify that the objecting organizations were neither administering nor funding the contraceptive benefits.
Because such coverage would, of course, involve Highmark or UPMC making reimbursements
for claims with its own funds--something the TPA would not have done if
Catholic Charities did not opt out—the federal government would then reimburse
the TPA for its payments in the form of an adjustment to the TPA’s assessed
user fees for the ACA exchanges. The costs of the contraceptive coverage
in such a case, in other words, would ultimately be borne by the government
itself, rather than by Highmark or UPMC, let alone by Catholic Charities, or the
Catholic Charities Health Plan, or the Trust, or the Diocese . . . or
Let’s break that possibility down into its constitutive steps, so that we can see the purported relationship between Rev. Zubik and anyone’s actual use of contraception:
1. The Diocese, under the supervision of Rev. Zubik, has chosen to create the Trust to be used by other employers (something the government does not require or compel, and that presumably is not required by the Diocese’s religious obligations, either).
2. The Board of Directors of the Trust (apparently) has chosen to operate the Catholic Charities Health Plan as a self-insured, rather than an insured, health insurance plan (something the government does not require or compel, and that presumably is not required by the Diocese’s religious obligations, either). [I explain inthis postwhy the claim of a substantial burden on religious exercise would be even more attenuated with respect to an “insured” plan, in which the insurance company itself makes the payments for reimbursement of covered services.]
3. The Diocese, under the supervision of Rev. Zubik, has chosen to allow Catholic Charities of the Diocese of Pittsburgh, Inc., to participate in one of the Trust’s self-insured insurance plans for its employees (something the government does not require or compel, and that presumably is not required by the Diocese’s religious obligations, either).
4. Catholic Charities, in turn, has chosen not to discontinue offering its employees a health insurance plan altogether, which would result in its employees’ obtaining insurance (with cost-free contraception coverage) in a plan on a state or federal exchange, with government subsidies, if necessary). Such a plan discontinuance is something the law would permit Catholic Charities to do; it’s something that many employers across the United States are likely to do; and presumably it would not be prohibited by Catholic Charities’ (or the Diocese’s) religion. (In several posts—see, e.g., this one and this one, as well as the earlier posts to which they link—I’ve argued that plaintiffs in these cases have failed to demonstrate, as RFRA requires, that such an option would itself impose a substantial burden on their religious exercise.)
5. Catholic Charities has chosen to use one of the self-insured plans offered by the Diocese-created Trust (something the government does not require or compel, and that presumably is not required by Catholic Charities’ religious obligations, either).
6. The Board of Directors of the Trust (apparently) has chosen to use third-party administrators to administer the self-insured Catholic Charities Health Plan—rather than having the Trust or Catholic Charities self-administer the plan. This, too, is a choice the government does not require or compel, and that presumably is not required by the Diocese’s (or Catholic Charities’, or the Trust’s) religious obligations, either. And, as I’ve previously explained (see “Theory Seven” discussed in that post, citing 78 Fed. Reg. at 39,880-39,881), if the Trust (or Catholic Charities) chose instead to self-administer the plan, the regulations provide for a “safe harbor” that would not require contraceptive coverage for the Catholic Charities employees at all.
7. The Board of Directors of the Trust (apparently) has chosen to contract with Highmark and UPMC, in particular, as the TPAs that administer the Catholic Charities Health Plan—rather than contracting with TPAs that would themselves pledge not to accept the government’s request to provide contraception coverage. If the Trust, like Little Sisters of the Poor, had chosen such non-cooperative TPAs—something permitted by law and, presumably, by the Diocese’s religion—then the Catholic Charities employees would not receive contraception coverage, because the government purports to lack the authority to compel TPAs of church plans (such as the Catholic Charities Health Plan) to provide such coverage.
8. Under his hypothetical scenario, either Highmark or UPMC would voluntarily choose to provide the coverage to Catholic Charities' employees, even over Catholic Charities’ objection—something the law does not require Highmark or UPMC to do.
9. Finally, certain Catholic Charities employees, and/or their dependents, presumably would thereafter choose to have sex and use contraceptives in circumstances where they would not otherwise have done so, i.e., but for the availability of cost-free insurance coverage from Highmark or UPMC. (Obviously, this, too, is something the government does not require.)
The crux of Zubik’s and the Diocese’s RFRA claim, then—if I’m understanding it correctly—is that if the relevant parties took all of these steps, then they (Zubik and the Diocese) would be morally complicit in sinful conduct (the use of contraception), in a way that their Catholic doctrine presumably prohibits, when an employee of Catholic Charities (or a dependent thereof) uses one of the 18 covered contraception methods, even though neither Catholic Charities, nor the Trust, nor the Catholic Charities Health Plan—and certainly not the Diocese or Zubik—would be required or compelled to do any of the following:
-- pay for the reimbursement of contraception;
-- administer the reimbursement for contraception;
-- direct (or require, or instruct) Highmark or UPMC to provide contraception reimbursements;
-- inform either TPA that Catholic Charities had opted out of providing coverage;
-- inform or “notify” Highmark or UPMC of that TPA’s option of providing contraception coverage;
-- take any steps to help administer a TPA’s provision of contraceptive coverage;
-- refrain from objecting—publicly or privately—to a TPA’s provision of contraceptive; or
-- do anything else that a reasonable observer might view as approval or endorsement of contraception use or coverage.
What’s more, Zubik and the Diocese would allegedly be morally complicit in the use of contraception by Catholic Charities employees even though neither the government nor the Diocese’s (or Rev. Zubik’s) religious tenets require anyone to take any of the nine or so steps in the chain described above.
For all of these reasons, it is very difficult to see how such petitioners would be able to demonstrate that the accommodation substantially burdens their exercise of religion, where the alleged tie between the plaintiffs’ own action depends so critically upon so many independent private choices that are neither required nor coerced by the government.
For example, it might well be the case that neither Highmark nor UPMC will agree to provide contraceptive coverage to the Catholic Charities employees (perhaps because they wish to remain on good terms with Catholic Charities). In that case, there will be no reimbursement for the cost of contraceptives at all, and thus no conceivable complicity, by any of the Zubik petitioners, in any use of contraceptives by Catholic Charities' employees.
Or perhaps Catholic Charities and other organizations that use the Diocese's Trust plans will decide to (i) self-administer those plans (i.e., not use a TSP); or (ii) switch to TSPs that will not agree to provide contraceptive reimbursement; or (iii) switch over to insur affordableed plans (in which case the insurers will offer the coverage, even as a formal legal matter, through wholly distinct, separate plans); or (iv) follow the lead of increasing numbers of employers and stop providing health insurance to its employees altogether (in which case their employees would not go without overage, but instead would receive coverage (subsidized, where necessary) from an plan purchased on an exchange).
And even if none of these things happened (which is very, very speculative), the Diocese and its Trust itself could, in that case, switch over to insured plans, or switch over to church plans using TPAs that will not provide the contraceptive coverage, or stop providing plans to other employers altogether--all of which are options that the law permits.
* * * *
What I’ve described here is hardly unique to Zubik and the Roman Catholic Diocese of Pittsburgh. Many of the petitioners in the seven cases the Court has granted—including, for example, Little Sisters of the Poor and the Roman Catholic Archdiocese of Washington, D.C.—are not employers whose employees would be reimbursed for the costs of contraceptive methods under the regulatory accommodation. And some of those petitioners do not even operate a trust that itself offers insurance plans, as the Pittsburgh Diocese does. [UPDATED: I've pulled together a preliminary categorization of all 37 of the petitioners below, based upon the representations in the cert.-stage briefs.]
Accordingly, I think it would be of great service to the Justices if the litigants, commentators and the press were to focus most closely on those petitioners whose employees would receive contraception reimbursement if the petitioners themselves were to notify HHS that they were opting out pursuant to the accommodation. Take, for example, two of the petitioners in No. 14-1505, Roman Catholic Archbishop v. Burwell: Catholic University offers health insurance coverage to its employees and its students under insured plans; and Thomas Aquinas College offers coverage to its employees under a self-insured plan that is not a “church plan.” Or, perhaps better yet: Southern Nazarene University, a petitioner in No. 15-119, which uses both an insured plan (for its students) and a self-insured, TPA-administered (non-church) plan (for its employees). The RFRA analysis is difficult enough to unpack and make sense of even as to these petitioners, who have the (relatively) strongest arguments on the “substantial burden” prong of RFRA. (In earlier posts, I have examined in far greater detail the “substantial burden” arguments that the Court will have to contend with as to these two sorts of employers—see, especially, this post, as well as this one (which explains the effect of the government’s subsequent augmentation of the accommodation on the claims of employers with self-insured plans), and this one (which focuses on the various arguments that the petitions have brought front and center).) But those complications are nothing compared to the complexities raised by the claims of other petitioners, such as Zubik, the Pittsburgh and Washington Dioceses, and Little Sisters.
If the Court rejects the RFRA claims of petitioners such as Catholic University, Thomas Aquinas College, and Southern Nazarene University, there won’t be any need for the Justices to wade into the thicket of additional complications for employers with “church plans,” especially those (such as Little Sisters of the Poor) whose TPAs will not provide the coverage upon request, or organizations (such as the various Roman Catholic Dioceses) that are themselves entirely exempt from the regulation . . . let alone to go the further step of untangling the RFRA claims of individuals such as Rev. Zubik. Therefore, the Court ought to begin by examining those cases—such as the RFRA claims of Catholic University, Thomas Aquinas College and Southern Nazarene University—in which the access of employees (and dependents and students) to cost-free contraception coverage is truly at stake, rather than the cases in which such individuals would not receive such coverage under any scenario.
Categories of petitioners in the seven cases:
Employers using insured employee plans (5) Priests for Life (14-1453) Catholic University of America (14-1505) (also uses insured student plan)
Oklahoma Baptist University (15-119) (also uses insured student plan)
Oklahoma Wesleyan University (15-119) Geneva College (15-191) (also uses insured student plan)
Employers using insured student plans (4) Catholic University of America (14-1505) (also uses insured employee plan) Oklahoma Baptist University (15-119) (also uses insured employee plan) Southern Nazarene University (15-119) (also uses self-insured employee plan) Geneva College (15-191) (also uses insured employee plan)
Employers using self-insured, TPA-administered, non-“church plan” employee plans (3) Thomas Aquinas College (14-1505) East Texas Baptist University (15-35) Southern Nazarene University (15-119) (also uses insured student plan)
Employers using self-insured, TPA-administered “church plans” for employees, whose TPAs are not required to provide contraceptive coverage (18) Catholic Charities of the Diocese of Pittsburgh, Inc. (14-1418)
Erie Catholic Preparatory School (14-1418)
Prince of Peace Center, Inc. (14-1418)
St. Martin Center, Inc. (14-1418)
Archbishop Carroll High School, Inc. (14-453)
Catholic Charities of the Archdiocese of Washington, Inc. (14-453)
Catholic Information Center, Inc. (14-453) (fewer than 50 employees)
Consortium of Catholic Academies of the Archdiocese of Washington, Inc. (14-453) Don Bosco Cristo Rey High School of the Archdiocese of Washington, Inc. (14-453) (fewer than 50 employees) Mary of Nazareth Roman Catholic Elementary School, Inc. (14-453) Victory Housing, Inc. (14-453)
Houston Baptist University (15-35)
Westminster Theological Seminary (15-35)
Little Sisters of the Poor, Baltimore, Inc. (15-105) (whose primary plan TPA--Christian Brothers Services—already has promised not to provide contraceptive coverage even if Little Sisters opts out)
Little Sisters of the Poor Home for the Aged of Denver (15-105) (whose primary plan TPA--Christian Brothers Services—already has promised not to provide contraceptive coverage even if Little Sisters opts out) Reaching Souls International, Inc. (15-105) Truett-McConnell College, Inc. (15-105) Mid-America Christian University (15-119)
Wholly exempt entities that “sponsor” church plans for other employers (3) Roman Catholic Diocese of Erie (14-1418) Roman Catholic Diocese of Pittsburgh, Inc. (14-1418) Roman Catholic Archbishop of Washington (14-1505)
Directors of wholly exempt entities that “sponsor” church plans for other employers (2)
The Most Reverend Lawrence T. Persico (14-1418)
The Most Reverend David A. Zubik (14-1418)
Directors of an employer (Priests for Life) using an insured employee plan (3)
Alveda King (14-1453)
Janet Morana (14-1453)
Father Frank Pavone (14-1453)
Employee church plans themselves (2) Christian Brothers Employee Benefit (15-105) GuideStone Financial Resources of the Southern Baptist Convention (15-105)
An employee church-plan TPA (1) Christian Brothers Services (15-105) (CBS has already said it will not provide contraceptive coverage if requested to do so) 37 petitioners total (four of which use both employee and student plans)