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
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
The government and the petitioners yesterday filed their supplemental reply briefs in response to the Court's order. This latest and final round of briefs largely confirms what I wrote last week, but the new briefs do add important details that demonstrate the wide gulfs that remain between the parties as to all three types of insurance plans at issue (insured plans, self-insured plans, and church plans).
For reasons I'll explain, I think the supplemental briefing has significantly weakened the petitioners' efforts to show that the government's accommodation substantially burdens their religious exercise. More importantly, perhaps, it has strengthened the government's argument that there are no alternative means of providing contraceptive coverage to the beneficiaries of petitioners' plans that would both further the government's compelling interests and alleviate the alleged substantial burden on the petitioners' exercise of religion.
In this post I will, once again, address the three types of plans separately. I'll assume that you've already read my post from last week, which will avoid the need for me to reiterate the details about how each type of plan works and the ways in which the petitioners' new proposal would undermine the government's compelling interests.
As I've previously posted, only six of the 37 petitioners offer their students and/or employees participation in an "insured" health insurance plan--the focus of the Court's proposal. (Three other, individual petitioners are directors of an insured employee plan.) Three petitioners offer their employees participation in "self-insured" plans that are not "church plans." And the remaining 26 petitioners, including Little Sisters of the Poor, either offer their employees access to what is known under ERISA as a "church plan," or are in some other respect associated with such church plans. (This would appear to add up to 38 petitioners, but there are only 37--one petitioner, Southern Nazarene University, uses an insured student plan and a self-insured employee plan.)
I'll start here with the category that covers most of the petitioners--church plans--because that's the category with the most straightforward RFRA disposition:
Church plans (18 employer organizations).
Eighteen of the petitioners, including Little Sisters of the Poor, offer their employees access to a "church plan." Five others "sponsor" church plans for other employers or are directors of such sponsoring organizations. Two petitioners are church plans; and a twenty-sixth petitioner is a third-party administrator of church plans.
In their supplemental reply brief, these 26 petitioners assume that the government's proposal would "forc[e]" the employers in question "to abandon their church plans." That's incorrect. As I've explained in several posts, these petitioners cannot possibly demonstrate that the government regulation substantially burdens their religious activity, because it is completely within their power, without incurring any penalties at all, to prevent their employees from receiving contraception coverage. And if their employees do not receive coverage, there will be no purportedly immoral conduct in which the petitioners could possibly be complicit.
The organizations in question thus do not have to "abandon" their church plans in order to avoid any burden--they need only instruct the third-party administrators of the plans (TPAs) that they may not provide coverage to the employees, even outside the auspices of the plan. At that point, once they, or the TPAs themselves, inform the government that the TPAs will not provide coverage, the government lacks the authority under ERISA to compel the TPAs of church plans to do so. In such a case, unfortunately, the beneficiaries of church plans, including the employees of the nursing homes operated by Little Sisters, will not receive coverage for contraception. In every practical respect, then, Little Sisters and the other petitioners that use church plans are already entitled to be "exempt" from the regulation altogether: their employees' contraceptive use will not be subsidized unless the employers choose to allow the TPAs to make payments. Therefore the petitioners cannot possibly establish that the regulation substantially burdens their religious exercise, and those claims should be dismissed without more.*
Insured plans (four universities, one college, and one other employer organization).
The next largest category of petitioners are those that offer their employees and/or students participation in insured plans. There are six such petitioner organizations: two offer such plans to their employees (Oklahoma Wesleyan University and Priests for Life); another offers such a plan to its students (Southern Nazarene University); and the other three offer insured plans to both their employees and students (Catholic University, Geneva College, and Oklahoma Baptist University). Three other individual petitioners--Alveda King, Janet Morana and Father Frank Pavone--are directors of Priests for Life.
The petitioners' reply brief confirms what I wrote last week: Unlike the government, they are not willing to accept the Court's alternative proposal. To be sure, they are now ok with almost all of the details of that proposal, including, most importantly, the fact that the insurance companies with which they have contracted would be providing payments for contraception to their employees and students. They continue to insist, however, upon two additional, relatedconditions: (i) that the insurance companies provide coverage through a separate insurance policy, rather than (as under the current accommodation and the Court's proposal) by direct payments to the women in question outside the auspices of any insurance policy; and (ii) that the women themselves would have to "opt in" to eligibility for such coverage, even before they choose to request any payments for contraception itself. (The government confirms (see page 2, n.1) that the other conditions on which petitioners would insist are already part of the government's accommodation regulation.)
Two things about the petitioners' demanded conditions are especially notable from a RFRA perspective, and each should be fatal to the RFRA claims of the nine petitioners associated with insured plans.
First, the government confirms in detail, at pages 3-6 of its reply brief, what I surmised last week: Both of the conditions would undermine the government's furtherance of its compelling interests, principally because there would be state-law obstacles to the creation of contraception-only insurance policies, and because the "opt in" requirement would impose burdens on women that their male counterparts do not share and that would, as a practical matter, decrease the number of women with access to affordable contraceptive coverage. Accordingly, RFRA would not require the government to accept those conditions, even if their absence did substantially burden the religious exercise of the nine petitioners. (In addition, as I've argued previously, to the extent such conditions would require a new congressional enactment and new appropriations, that would be an independent reason why it is not an available "less restrictive means" under RFRA.)
Second, petitioners' current position undermines their own assertion that the accommodation substantially burdens their exercise of religion by making them complicit in women's use of contraception. Recall that their complicity claims previously were based upon one or more of three things that the accommodation regulation purportedly required the employers themselves to do: (i) send an opt-out notification to the government or to the insurer, and/or (ii) contract with an insurer that would also be independently providing payments to their employees/students for the costs of contraception; and/or (iii) establish an insurance plan that would be "hijacked" to provide such coverage. Neither the existing accommodation itself nor the Court's proposal involves any "hijacking" of an insured plan: the company must make payments completely independently of any plans, including the employer's. And the Court's proposal would eliminate the first objection--the requirement to send the opt-out notice to the government or the insurer.
That leaves only the second objection--that the employers were complicit by virtue of their contracting with an insurer that would, in turn, pay for their employees'/students' contraceptive services. Now, however, the petitioners disclaim even that as a problem from the perspective of their religion--indeed, even under their own proposal, the insurers with which they contract would provide payments for the contraception to the employers' students and/or employees.
So what's left, in terms of any employer involvement that might possibly support a claim of complicity? Nothing at all. The petitioners now simply insist that the government structure the relationship between third parties -- the insurance company and the women purchasing contraception -- in one way rather than another. This is inconsistent with what they represented in their opening briefs to the Court. The Zubik petitioners, for instance--including Catholic University and Priests for Life, which use insured plans--told the Court (pp. 45-46):
Petitioners do not seek to “dictate the conduct of the government or of third parties,” nor do they claim the right to exercise a “religious veto against [the] legally required conduct of others.” Instead, “the harm [they] complain of” is “their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government.” [quoting Judge Brown's dissent in Priests for Life]
Likewise, the other four petitioners with insured plans (Geneva College, Oklahoma Baptist University, Oklahoma Wesleyan University and Southern Nazarene University) represented (pp. 51-52):
Nor can the government avoid the strictures of RFRA by attempting to recharacterize petitioners’ religious objections as objections to the actions of third parties. Petitioners are not asking this Court to enjoin the government or third parties from providing
contraceptive coverage to their employees. They are only asking this Court to enjoin the government from enforcing the contraceptive mandate against them—in other words, from threatening them with crippling penalties unless they take actions that enable their
plan infrastructure to be used to provide coverage that violates their sincere religious beliefs. It is the obligation that HHS has imposed on petitioners, not the actions of third parties, that is the source of
petitioners’ RFRA claims.
Petitioners have now done an about-face: They are no longer complaining about any "obligation that HHS has imposed on petitioners" themselves; instead they are "claim[ing] the right to exercise a 'religious veto against [the] legally required conduct of others.'"
This is fatal to their RFRA claims in at least two, related respects. First, the petitioners have not even tried to articulate how or why any particular relationship mechanisms used by the insurance companies and the women could possibly make them, the employers, complicit in the use of contraception, or in any other way substantially burden their religious exercise. Second, even if they had made such an argument, RFRA should be construed to preclude, as a matter of law, claims of substantial burden based wholly on the conduct of the government and third-parties, just as the Court has held (Bowen v. Roy; Lyng)that the government's own internal conduct cannot form the basis for a cognizable burden. See U.S. Brief at 42-50. As Doug Laycock put the point in the amicus brief for the Baptist Joint Committee for Religious Liberty (p.25):
Some substantial-burden cases may be difficult, but many, including these cases, are amenable to bright-line rules. Religious objectors are not entitled to exemptions for secular entities they deal with at arm’s length, or to control the government’s regulation of such entities conduct as a matter of law.
The government is thus correct when it writes (p.2 of its supplemental reply brief) that "[w]hether the coverage consists of state-regulated insurance policies or federally-mandated direct payments, and whether women must take affirmative steps or are automatically eligible, nothing at all is required of petitioners. That must be dispositive."
* * * *
Before turning to the three petitioners with "self-insured" plans, one more aspect of the petitioners' supplemental reply brief warrants a response.
Recall that the Court's alternative proposal differs from the existing accommodation in only one minor respect--namely, the way in which the objecting employer would notify the insurer that it is "opting out." Under the Court's proposal, the employer would, "in the course of obtaining . . . insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds." The government has argued that the Court should not impose its alternative proposal--which would be less efficient and practical than the existing means of opting out. The government also has acknowledged, however, that the Court's alternative proposal would not undermine any compelling government interests.
Petitioners argue that this "concession" on the government's part "is enough to doom its RFRA defense" (p.1). Because "the government itself now concedes that it has less restrictive means available to it, . . . it must use them or abandon the mandate as to petitioners entirely. RFRA demands nothing less." (p.2)
This suggestion is, not to put too fine a point on it, absurd. Petitioners do not argue that the Court's alternative proposal would eliminate the alleged substantial burden on their religious exercise, or even that it would materially ameliorate that burden: to the contrary, as explained above, they continue to insist (albeit without much explanation) that there would be a substantial burden unless the insurer offered a separate policy and required women to "opt in" to eligibility to use that policy.
Therefore the Court's proposal, while it might alleviate an administrative burden in a minuscule respect, would not be "less restrictive" in any way that matters under RFRA: In contrast with the alternative means that the Court relied upon in Hobby Lobby, it would "impinge on the plaintiffs' religious belief" and thus would not "accommodate the religious beliefs asserted." 134 S. Ct. at 2782 & n.40. Accordingly, RFRA does not require the government to adopt that proposal (something that would do nothing to affect the RFRA litigation); nor does RFRA direct a verdict for the petitioners--which would dramatically harm the government's compelling interests in a way the Court's proposal would not--simply because the government acknowledges that one particular paperwork requirement of the regulation is "merely" useful and efficient, rather than absolutely necessary.
Self-insured plans (two universities and one college).
Three of the 37 petitioners--East Texas Baptist University; Thomas Aquinas College (in California); and Southern Nazarene University (in Oklahoma)--offer their employees participation in "self-insured plans that are not "church plans."
The Court did not specifically ask the parties to address such self-insured plans, presumably because it realized that the payments for contraception and the underlying plans cannot, as a matter of ERISA law, be formally separated in the way the Court's proposal describes. The parties, too, agree that no proposal such as the Court's would resolve the RFRA dispute with respect to self-insured plans, because, under ERISA, the government lacks any authority to require the TPA of such a plan to provide coverage that is legally not part of the underlying employee plan.
As I noted last week, the government argues that the three higher-ed petitioners nevertheless do not suffer any substantial burden on their religious exercise because they "could avoid any objectionable features of the regulations applicable to such [self-insured] plans by switching to insured plans." Until now, East Texas Baptist University, Southern Nazarene University and Thomas Aquinas College had not offered any reason why that available option does not foreclose their RFRA claims.
In the latest brief, however, they do, for the first time, interpose an objection to that option: Use of a self-insured plan, they say (pp. 8-9), "is often the only way to avoid the many state-law mandates that violate their religious beliefs, such as those requiring coverage of surgical abortions." (State law presumably would apply by virtue of such a switch because whereas ERISA preempts state law regulation of self-insured plans, it does not preempt state-law regulation of insured plans.)
None of the three petitioners at issue, however, has advanced this argument before, nor (as far as I'm aware) introduced any evidence or argument that the States of Texas, Oklahoma and/or California (regulating East Texas Baptist University, Southern Nazarene University and Thomas Aquinas College, respectively) regulate insured plans in a way that would cause them to violate their religious obligations if they switched over to such plans. And so it's not obvious there would be any such state-law-imposed burden on their exercise of religion. (Indeed, many religious schools with similar moral beliefs do use insured plans, including several of the other petitioners, two of which are in Oklahoma, as well as Southern Nazarene University itself, which currently offers an insured plan to its students.)
Even if one or more of the three schools could make such a showing about state-law-imposed burdens, however, that would, at most, only bring us back to the question of whether the government has a "less restrictive" way of furthering its compelling interests if those schools are afforded a RFRA exemption. And, as I've argued in earlier posts, and in this amicus brief, there are no such "less restrictive" means.
* You might be wondering: If an employer with a church plan has the power to ensure that its TPAs will not provide coverage to employees, why does the regulation nevertheless require the organization to provide the names and addresses of the TPAs to the government? The answer is fairly straightforward: Remember that Little Sisters and the other petitioners here are not the norm--many employers with church plans might conclude that their religious obligations are not violated if and when TPAs provide coverage voluntarily, outside the auspices of the plan. In those, the run-of-the-mine church plan cases, the government must know what TPAs to contact. But if an organization has already insisted that the TPAs not provide such coverage, or if the TPAs themselves refuse to provide it, I can't imagine that the government would continue to insist upon the organization providing the the TPAs' contact information, a ministerial act that would not serve any apparent purpose. Indeed, that is what I understood Solicitor General Verrilli to be saying at oral argument when he answered "no" to Justice Alito's question about whether, "in that situation," Little Sisters would "still be subject to fines for failing to comply." (In any event, even if the government were, for some reason, to continue to insist that the employer provide information about TPAs, that would not support a RFRA claim no matter how weak the justification might be, because without any contraception payments, there's no arguable substantial burden on religious exercise, a prerequisite for any RFRA claim.) Posted
by Marty Lederman [link]