Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Zubik oral argument (Part II): Is the theoretical prospect of a new statutory subsidy for "stand-alone" contraception plans on the Exchange a less restrictive means of advancing the government's interests?
As I explained in my earlier post, the Court's disposition of Zubik will likely turn, as Justice Kennedy suggested at oral argument, on "whether or not there are less restrictive alternatives" for advancing the government's compelling interests. There are two such compelling interests: (i) ensuring that women have unfettered access to the full range of contraceptives, primarily to enable them to avoid unplanned pregnancies (and thereby to realize the many benefits that come with such a reduction, including a reduction in abortions), but also, in some cases, to diminish other health risks (such as certain cancers, menstrual disorders, and pelvic pain, all of which can for some women be prevented through the use of some contraceptives); and (ii) ensuring women's equal affordable access to needed health care. See also Hobby Lobby, 134 S. Ct. at 2785-2786 (Kennedy, J., concurring) (government has a “compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee”). [In a footnote, I address mischaracterizations of the government's compelling interests offered by the Chief Justice and Professor Michael McConnell.*]
The oral argument focused on one of the petitioners' proposed alternatives, raised by Justice Alito--namely, offering women who work for an objecting employer the option of "obtain[ing] a contraceptive-only policy free of charge on one of the Exchanges." Because such contraception-only plans would not really be insurance plans in the typical sense--they would simply be a means of payment for preventive services that the women in question will purchase--such an option would have to be fully subsidized by Congress (for otherwise the insurance companies would have no incentive to offer such stand-alone "coverage").**
Such a "subsidized contraception-only Exchange plan" option would not be a less restrictive means of advancing the government's compelling interests, for purposes of RFRA. Most obviously, it would, quite simply, result in fewer women having access to effective contraception--and thus more unplanned pregnancies--by creating (in the SG's words) "precisely the kinds of barriers" to access "that Congress was trying to eliminate." Part III-A-1-a of the Health Experts' amicus brief (pp. 12-14), filed by Marcy Wilder and Hogan Lovells, offers a compelling explanation of why that's the case: I set out that explanation below.
Before turning to that reason, however, there is an even more fundamental objection: A "subsidized contraception-only exchange plan" option cannot be a less restrictive means for purposes of RFRA because it would require a new legislative enactment, including a new appropriation (or some other financial mechanism, such as tax credits) to pay -- in full -- for the costs of the hypothetical contraception-only plans.
When the Solicitor General began to press this point at oral argument on Wednesday, the Chief Justice was incredulous; he interjected: "Well, the way constitutional objections work is you might have to change current law!"
The Chief Justice is, of course, correct that that is, indeed, the way that some constitutional objections work: When, for instance, the legislature enacts a racially or religiously discriminatory law, or a law that regulates speech on the basis of its content, and the Court finds that the law is facially invalid because the legislature could have furthered its interests in a race- or religion- or content-neutral manner, then the legislature must go back to the drawing board and consider such a neutral law if it wishes to advance its interests. (And in the meantime, the law is inoperative across the board.)
But that is decidedly not how the Court ever applied the very different "less-restrictive-means" test that it used in the Free Exercise jurisprudence that RFRA incorporates, and therefore it is not how the test is properly applied under RFRA, either. In these settings, the law of general applicability is neutral, and no one is challenging its facial validity: claimants are merely seeking individualized exemptions from the facially valid law. Under those circumstances, the Court has never held that the mere theoretical prospect of future legislation in response to the exemption claims--legislation that would almost never transpire--is a "less restrictive means" that compels conferral of the exemptions, and thus a harm to the government's compelling interests, even in the absence of such legislation. That has not been the basis for any of the cases in which the Court has recognized a right to religious exemptions (the Sherbert line of unemployment benefit cases; Yoder; O Centro; and Holt); and if it were the rule, the Court would have granted exemptions in several cases where it did not.
In Braunfeld v. Brown, for example, the legislature could have advanced its interest in uniform Sunday store closings without burdening the religious exercise of Saturday sabbatarians by simply enacting a law to pay the sabbatarians for the income they lost by virtue of staying open five days a week rather than six. But that possibility did not suffice to require allowing the sabbatarians to work on Sundays. In Tony & Susan Alamo Foundation, Congress could have passed a law to subsidize the overtime work of employees who worked for businesses that had religious objections to the requirements of the Fair Labor Standards Act--but of course the Court did not grant the religious exemptions because of the possibility of such a statutory "fix." And in Hernandez v. Commissioner, if the Church of Scientology had been given the tax deductions it was seeking, Congress could have made up for the shortfall in revenue by simply increasing marginal tax rates by a minuscule degree. See also my recent article at pp. 439-40 (discussing U.S. v. Lee).
There is good reason the Court has never applied such a rule in cases seeking religious exemptions from valid, generally applicable laws; and even better reason that Congress would never have imposed such a constraint upon itself--in effect requiring it to either constantly enact statutory "RFRA fixes," or otherwise to suffer significant harms to compelling government interests--as a matter of statutory obligation. I elaborate upon this aspect of the "least restrictive means" part of the RFRA test at much greater length in Part IV-B of this article (pp. 438-40), as do my fellow and amici and I at pages 28-29 and 31-34 of this amicus brief in Zubik.
Even if it were appropriate to consider a theoretical (but unlikely) legislative enactment as a potential "less restrictive alternative," however, the particular alternative that Justice Alito identified would be far less effective in advancing the primary compelling governmental interest in securing women's access to effective contraceptive services (and thus reducing unplanned pregnancies and abortions). The Health Experts' brief explains the two primary reasons why that is so. First:
Finding and obtaining stand-alone contraceptive coverage on the Exchanges would not be easy. Although Petitioners attempt to minimize the burden women would face as well as the damage that burden would do to public health and gender equality, see, e.g., Zubik Pet. Br. 75, it is clear that finding and obtaining stand-alone contraceptive coverage on the Exchanges would be a substantial barrier for many women.
[W]omen would be required to learn of and find their way to the Exchanges in search of supplemental contraceptive coverage (presumably with no help from the employers that sponsor their primary health plans). This alone would be a significant barrier, given that the government, despite considerable effort, continues to face challenges in reaching individuals to inform them of the Exchanges in general. See Kaiser Family Found., Few Uninsured Know Date of Pending Deadline for Obtaining Marketplace Coverage; Many Say They Will Get Coverage Soon, Though Cost is a Concern (Dec. 2015). And, here, given the presumed non-cooperation of objecting employers, the government could not know the identities of the women at issue to target them for outreach and education. Moreover, there is no guarantee that an insurer in a given state would offer contraceptive-only policies on that state's Exchange. Even assuming a contraceptive-only policy were available, women would need to shop for coverage and then navigate the enrollment process.
Each incremental additional step would serve as a barrier to women obtaining coverage. And the well-documented pervasiveness of low health insurance literacy, which is not surprising given how inherently complex a consumer product health insurance is, would compound the cumulative effect of these barriers. Linda J. Blumberg, et al., Public Understanding of Basic Health Insurance Concepts on the Eve of Health Reform, Urban Inst. Health Policy Ctr. (Dec. 2013) (“Almost two out of three adults specifically targeted for enrollment in the new health insurance Marketplaces (60.1 percent) report gaps in their understanding of basic insurance concepts, including co-payments, premiums, deductibles, coinsurance, and provider networks.”). Obtaining coverage on an Exchange can be challenging, and, here, it certainly would not be seamless. Under the accommodation, women face none of these obstacles.
And second, "[e]ven if a woman could obtain a contraceptive-only plan on an Exchange, she would be limited by that stand-alone plan's provider network." As the Health Experts' brief elaborates:
If a woman's current obstetrician, gynecologist, or primary care provider were not a member of that provider network, she would have to switch providers with respect only to contraceptive services and lose the benefit of both her potentially longstanding relationships with providers in her primary health plan and the integration of her contraceptive care with her other preventive care. A system that requires a woman to visit two doctors for her preventive care would materially reduce the number of women who actually receive such care. It could also undermine that care by separating one component for isolated consideration for no clinical reason.
The absurdity of Petitioners' alternative is further laid bare when one considers what contraceptive coverage entails. Petitioners focus on contraceptive pharmaceuticals, but a key component of the contraceptive methods subject to the coverage requirement is “patient education and counseling for all women with reproductive capacity.” Health Res. & Servs. Admin., Women's Preventive Services Guidelines. Patient education and counseling often occur as a part of the well-woman preventive care visits that plans are also required to cover. See id. Petitioners' alternative could require a woman to see one doctor for education and counseling about contraceptive methods and another for education and counseling about the rest of her preventive care. This disjointed and inefficient scheme would clearly not be as effective in furthering the government's compelling interests in either public health or gender equality.***
The "subsidized contraception-only exchange plan" option would also undermine the government's compelling interest in ensuring sex equality. As the government explains in its brief:
Congress enacted the Women’s Health Amendment to ensure that women receive equal health coverage appropriate to their medical needs—needs that make women’s health care “significantly more costly” than men’s. Hobby Lobby, 134 S. Ct. at 2785-2786 (Kennedy, J., concurring). . . . The gender equity that Congress sought to attain would be thwarted if women—and only women—were required to “enroll in new programs or to surmount other hurdles” to get coverage for a critical aspect of their medical care. 80 Fed. Reg. at 41,328. Even the women who succeeded in signing up for such a program and obtaining coverage would still bear the sort of disproportionate burdens that Congress sought to eliminate.
* * * *
Finally, there is no reason to think that such a new "subsidized contraception-only exchange plan" option would not also be met by RFRA objections from at least some of the petitioners and/or other religious employers. Presumably, a woman would be entitled to obtain the new "stand-alone" contraceptive reimbursement on an Exchange only upon proof, at a minimum, that she is employed by an organization that refuses to allow its insurer to provide contraceptive coverage. Because the conveyance of such qualifying information--by the employer or its insurer--would thus be a "but for" cause of the operation of the new law, under petitioners' theory of complicity the employer would remain impermissibly responsible for the woman's eventual use of contraception. As the government writes in its brief:
[T]here is no assurance that any of petitioners’ proffered alternatives could be administered in a manner consistent with their religious objections to the accommodation, or those of other employers. In order to provide special contraceptive coverage through the Exchanges, Title X, or some other government program, the government would still need objecting employers to give notice of their objection in some fashion so that the government could identify their employees, confirm their eligibility, and provide the benefits. That notice requirement would be subject to an objection like the one petitioners press here: employers could assert that providing notice in any form would make them complicit in the government’s subsequent provision of contraceptive coverage.
* At oral argument, the Chief Justice repeatedly insisted that the government's compelling interest "is not that women obtain the contraceptive services, but instead "that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by the Petitioners." That verbal formulation confuses cause and effect. The government's compelling interest is, indeed, that women "obtain the contraceptive services." (Indeed, it would be even more accurate to say that the ultimate compelling interest is in enabling the women to avoid unplanned pregnancies and other health problems--results that are only possible if they have full, affordable access to contraceptive services.) The government does not, of course, have an abstract interest in having any particular insurance company pay for those services. But that doesn't mean the government is indifferent as to which insurance company is involved. As I explained in my last post, if the government were unable to require the insurance companies that already have existing relationships with the employees and the providers to make such payments, the system would be far less efficient, and therefore fewer women would have access to the full range of contraceptive services. That is to say, the government has a need to use the insurance companies in question in order to advance its compelling interest in women obtaining the contraceptive services--which in turn prevents health risks and pregnancies, and helps secure women's equality in the workplace.
For the same reason, Michael McConnell is simply incorrect to argue that "the government is essentially trying to define the use of a particular means as the compelling interest in itself." It's doing no such thing. The Solicitor General rejected the idea that a "two-plan system [in which women would be able to purchase a second full insurance plan on an exchange] would pass muster" not because the government has a distinct compelling interest in commandeering a particular insurance company, but because that system would result in far fewer women having access to the range of contraceptive services. Why is that so? Because, as the SG noted, women would have to "pay for that policy," and they've already effectively paid for their employer-provided policy, which is part of the compensation package they receive in exchange for their labor. No rational woman would purchase a whole second policy merely to obtain contraceptive coverage--indeed, the cost of purchasing the contraceptives directly, without reimbursement--their status quo before the contraceptive regulation went into effect--would be far less expensive.
** In his post today, Professor McConnell floats another proposed "alternative" means of advancing the government's interest--one that no Justice raised at oral argument. McConnell notes that Congress already allows some other women to purchase complete health insurance plans (including contraceptive coverage) on an Exchange--with a government subsidy, if necessary. Why, then, he asks, wouldn't "simply allowing petitioners’ employees to purchase health plans on the exchanges" likewise "satisfy the government’s interest – as it does for millions of other employees"? The answer is simple: Those other employees have an incentive--indeed, a need--to purchase Exchange plans, because they are not otherwise receiving, and have not otherwise paid for, a comprehensive employment-based health plan. As I note in the previous footnote, however, the employees of the petitioners, by contrast, have already paid for, and receive, one insurance plan; it would therefore be absurd for them to purchase another plan merely in order to obtain contraceptive coverage.
Some alternatives could deny women the ability to obtain contraceptive counseling and services from their desired provider at the same time they receive other primary and preventive care. A woman going to her gynecologist for an annual examination, for example, may have to go to a different provider to be prescribed (or even discuss) contraception. This disjointed approach increases the time and effort involved in getting needed contraception and interferes with her ability to obtain care from the provider of her choice.
Isolating contraceptive coverage in this way also would interfere with the ability of health care providers to treat women holistically. A woman's choice of contraception can be affected by her other medical conditions (e.g., diabetes, HIV, depression/mental health), and medications such as antibiotics can significantly reduce the effectiveness of some methods of contraception, so a woman's chosen provider must be able to manage all health conditions and needs at the same time.