Tag Archives: Contraception Mandate

On Corporations, Their Purposes, and Their “Exercise of Religion” Under RFRA

Posted on February 9, 2013 by | 1 Comment

Kevin Walsh (Richmond) has a superb post about the question whether for-profit corporations are “persons” who “exercise religion” pursuant to RFRA.  He makes his claims in the context of criticizing a recent panel decision of the Third Circuit.  You should read the whole thing, but here is a selection:

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal . . . .

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example,Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

For Kevin’s arguments about the meaning of “exercise of religion” under RFRA and about the purposes of corporate action, read the post.  I will add that on the former point, it is unquestionably the case that as a historical matter, refusals to behave in a certain way may be “exercises of religion”: two of the earliest religious exemption questions — the Quakers’ resistance to military conscription and the opposition in some religious communities to swearing oaths — take just this form.

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Posted in Commentary, Marc O. DeGirolami

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Proposed Tweaks to the Existing HHS Contraception/Abortifacient Mandate Regulations

Posted on February 2, 2013 by | Leave a comment

I’m somewhat delayed (but only by a day) in posting this item about the Obama Administration’s proposed new regulation on this issue.  Frankly, I waited  because (a) I have a hard time understanding some of the bureaucrateze; (b) after mulling it over a little last night, I’m still not exactly sure what the proposed tweaks actually change; and (c) these tweaks are only proposed (something the headline of the New York Times story on the subject today misrepresents).  The document is 80 pages, but for those looking to get a quick handle on it, I recommend focusing on roughly pp.18-31.  That’s where most of the action is.

Rick Garnett and Tom Berg have some reactions to what the proposal does at Mirror of Justice.  For summary purposes, their initial take, combined with some thoughts of my own, is that:

  1. The new regulation would not protect for-profit entities of whatever size.  This seems clearly a correct reading.  The proposed regulation says that ”The Departments do not propose that the definition of eligible organization extend to for-profit secular employers. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations. Accordingly, the Departments believe it would be appropriate to define eligible organization to include nonprofit religious organizations, but not to include for-profit secular organizations.”  (P.23)
  2. As to non-profits, the situation changes in the following ways.
    1. First, on the issue of who gets covered as a “religious employer,” the Administration would remove language that would have permitted it to inquire about the institution’s “inculcation of religious values” and about whether the entity serves “primarily” co-religionists.  Instead, there would be a reversion to IRS rules about who counts as a religious employer.  And if you read pages 19-20, you will see that this definition is limited to those institutions that are “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”  Rick and Tom both believe that this definition would include “integrated” units of churches (for example, a soup kitchen or school actually operated by a church) but not independent faith-based non-profits (for example, Catholic Charities).  The proposal states that using this definition would effectively cure all excessive entanglement problems.  I am doubtful about this, but I do agree that some of the more egregious entanglement problems associated with the inquiries about “inculcation” and percentage of co-religionists would be cured.  The government notes that it “welcome[s] comments on this proposal, including whether it would unduly expand the universe of employer plans that would qualify for the exemption and whether additional or different language is needed to clarify the scope of the exemption.”
    2. For those that do not qualify for the exemption above but that meet various criteria (see page 22 for the four part requirement, and also page 48), pursuant to the “accommodation” mentioned by the Administration at earlier points, it now appears that non-profits will have their insurers pay, and there will be some sort of certification by the insurer that the non-profit has not borne the cost of the coverage.  It appears that this proposal would cover non-profit institutions like religiously affiliated universities, charities that do not qualify under 2(A), and so on.  The language is: “the health insurance issuer providing group coverage in connection with the plan would assume sole responsibility, independent of the eligible organization and its plan, for providing contraceptive coverage without cost sharing, premium, fee, or other charge to plan participants and beneficiaries.”  (23)
      1. How, one might wonder, does the government propose to require that the insurer not pass along the costs of this proposal to the insured?  This is what the government says: the insurer must provide coverage that “is not included in the group policy, certificate, or contract of insurance; such coverage [must not] not [be] reflected in the group health insurance premium; and … no fee or other charge in connection with such coverage [must be] imposed on the eligible organization or its plan.  The proposed rules would further direct the issuer receiving the copy of the selfcertification to provide contraceptive coverage under individual policies, certificates, or contracts of insurance (hereinafter referred to as individual health insurance policies) for plan participants and beneficiaries without cost sharing, premium, fee, or other charge.”  The government states that this means that the coverage is provided at “no cost” to the objecting institutions, but for reasons that have been discussed earlier, that is subject to question.  The proposal also includes the (to me) silly view — which the government has repeatedly advanced — that all of this will save the insurers money.  If that were true, one can be sure that the insurers would have provided this coverage for free long ago.
  3. Finally, it is not clear to me exactly what the proposal does with respect to self-insured entities.  The discussion begins at page 27, where the government states that it is “considering alternative approaches.”  There is some discussion about the role of “third-party administrators” in such plans, but I am afraid that I just do not know enough about the way in which self-insured entities manage their affairs to know what this would mean.  There is also language on this at page 67 which indicates that this issue has been “reserved.”  Once I get a better sense of this issue, I may post something else.

It’s probably worth saying that these are proposals only subject to notice and comment.  They aren’t the final rule.  But they obviously give a pretty good idea about what the Administration’s plan is likely to be.

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Posted in Commentary, Marc O. DeGirolami

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New York Times Story on the HHS Mandate Suits

Posted on January 27, 2013 by | Leave a comment

Here’s a story published yesterday in the Times on the HHS Mandate law suits.  The story has several problems, among which are:

(1) It gives the impression that courts are, at this point, either dismissing these cases because they believe that “contraception is a vital health need and a compelling interest” or finding for the plaintiffs because “they [the plaintiffs] have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.”  The reality is that the large majority of these  suits have been dismissed without prejudice on standing or ripeness grounds, as we have noted again and again here at CLR Forum.  Standing does not appear at all in the story.

(2) Its focus on the Free Exercise Clause is odd.  It mentions the Religious Freedom Restoration Act, but it focuses on the Free Exercise Clause and it mistakenly calls the O Centro case a free exercise case.  It was a RFRA case.  Here is some important language in that case:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”

The discussion of the Smith decision in the news story also gives the misimpression that Smith is an iron clad rule with no exceptions, but that is not true, as I have noted before.

(3) The story references the possibility that “[a] compromise for religious institutions may be worked out” and then proceeds to talk about the previously announced putative plan to shift the cost of contraception to insurers.  Standing alone — i.e., without an expansion of the category of religious employers and without dealing with the issue of self-insured plaintiffs — that compromise will work very little out for religious institutions.  But I guess we’ll see by roughly the end of the first quarter.

That said, the reporter is to be commended for getting a variety of perspectives on the issue.

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Posted in Commentary, Marc O. DeGirolami

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Notre Dame HHS Mandate Lawsuit Dismissed on Standing and Ripeness Grounds

Posted on January 5, 2013 by | Leave a comment

Well, it seems I was a bit…unripe in expressing the view that the HHS mandate suits seem not to be going the government’s way.  The United States District Court for the Northern District of Indiana has dismissed the University of Notre Dame’s complaint against Health and Human Services on standing and ripeness grounds.  Notre Dame falls within the safe harbor provision and so the as yet unknown ‘Advanced Notice of Proposed Rulemaking/putative proposed accommodation/vague promise of emendation of the current legal rule’ applies to it.  I quote the court’s language (along with its citations to those cases dealing with entities within and outside the safe harbor, many of which we have discussed before at CLR Forum) at length, as it may be helpful to readers to have it all in front of them:

This is one of dozens of similar suits filed across the nation, and courts have ruled on similar dismissal motions in several of those cases. Some of those rulings dealt with plaintiffs not in the safe harbor; as will be seen, those plaintiffs’ circumstances are too dissimilar to Notre Dame’s for those rulings to be helpful. See, e.g., Grote Indus., LLC v. Sebelius, No. 4:12cv00134-SEB-DML S.D. Ind. Dec. 27, 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D.Okla. 2012), application for injunction denied 2012 WL 6698888 (U.S., Dec. 26, 2012) (Sotamayor, J.); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012); Legatus v. Sebelius 2012 WL 5359630 (E.D.Mich., Oct. 31, 2012); O’Brien v. U.S. Department of Health and Human Services, 2012 WL 4481208 E.D.Mo., Sept. 28, 2012); Newland v. Sebelius, 2012 WL 3069154 (D.Colo., July 27, 2012).

Of the rulings involving plaintiffs in the safe harbor, all but one have found the claims unripe and the plaintiffs to have lacked standing. Zubik v. Sebelius, 2012 WL 5932977 (W.D.Pa., Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 (M.D.Tenn., Nov. 21, 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012), appeal held in abeyance 2012 WL 6652505 (D.C.Cir. 2012); Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C.Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Svcs., 2012 WL 2913402 (D.Neb. 2012); contra, Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864 E.D.N.Y. ,2012).  None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.

Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement . . . .

Turning first to ripeness, the challenged regulatory requirement isn’t sufficiently final. Notre Dame is correct that regulation itself claims to be final, 45 C.F.R. § 147.130(a)(1)(iv), but events following the regulation’s adoption make clear that it isn’t final. The defendants have announced their intention to refashion the rule in an effort to address concerns such as those Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from the rule for the time believed to be required for the re-fashioning. The government is entitled to a presumption of good faith in such promises . . . .

Our defendants have taken prompt and concrete action — the safe harbor provision — indicating that its [sic] rule is subject to reconsideration and modification.  Although Notre Dame is correct that an agency can’t “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way,” American Petroleum Institute v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012), none of the cases on which Notre Dame relies involve any parallel to the safe harbor provision that protects Notre Dame and others like it from the challenged rule.

Turning back to the question of standing, the challenged regulatory
requirement isn’t the cause of the injuries of which Notre Dame complains. Taking the defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require Notre Dame to conduct itself in ways its Catholic mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated. It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.

Indeed, “no one can say” what the replacement rule might do because “no one can say” what the promised proposed rule is, or might be, or is contemplated to be.  But every banana ripens at some point.

The case is University of Notre Dame v. Sebelius, No. 3:12CV253RLM (N.D. Ind. Dec. 31, 2012).

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Posted in Commentary, Marc O. DeGirolami

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Missouri Federal District Court Enjoins HHS Mandate

Posted on December 22, 2012 by | Leave a comment

The momentum in the HHS mandate cases seems to be moving against the federal government.  The more time that goes by, the weaker the standing and ripeness objections become, and the more likely that courts will begin to turn their attention to the merits.  The legal argument for the mandate seems to be flagging even in those cases where it seemed (at least to me) that the government’s case was comparatively stronger.

On Thursday, the United States District Court for the Western District of Missouri issued a preliminary injunction against the government from enforcing the mandate against a private company, American Pulverizer Co., whose owners are Evangelical Christians who believe that the use of contraception is contrary to their religious beliefs.  Plaintiffs’ companies employ about 150 people, and the current plans cover contraceptive services (perhaps a notable feature of the plans, in my opinion, insofar as the “substantial burden” prong of the RFRA standard is concerned, though the court did not discuss it in reaching its decision).  But plaintiffs wish to change the plans to exclude contraceptive coverage.

As in the O’Brien case referenced by the court (and in which the Eighth Circuit essentially granted the claimant’s motion for preliminary injunction pending appeal), the plaintiffs do not qualify for any exemption or safe harbor from enforcement — they are not religious employers under the terms of the ACA, the don’t qualify for the safe harbor available to non-profits, and they don’t qualify for grandfathered status.  That means the regulation would be enforced against them at the beginning of the new year.

In granting the preliminary injunction against the government, the court essentially punted on the question of whether a corporation can exercise religion, ruling that because the issue demands further “deliberate investigation,” an injunction was warranted.  And it further held that indirect impositions on religious beliefs can constitute substantial burdens.  Finally, the court held that the government could not satisfy its burden to demonstrate that it is advancing a compelling state interest in imposing the mandate, in light of the numerous exceptions contained in the law: “these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs.”

The case is American Pulverizer Co. et al. v. U.S. Department of Health and Human Services, No. 12-3459-CV-S-RED (W.D. Mo. Dec. 20, 2012).

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Posted in Commentary, Marc O. DeGirolami

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Ripeness and the Passage of Time

Posted on December 19, 2012 by | Leave a comment

Here’s a little thought about the effect of the passage of time on adjudication. The temporal dynamic I have in mind is the difference between being too late and being too early.  Being too late is best conceptualized in either/or terms.  If you file on time, you’re “in” and your law suit can move forward; if you file too late, your action is time-barred or falls outside an applicable statute of limitations, and you are “out.”  The issue of time is clean, hard-edged, and certain.  Acceptable and unacceptable are clearly designated.  The metaphors are of bells tolling, after which there is silence, or of nicely demarcated spatial boundaries.  Any exceptions are just that: exceptions to the rule, rather than judgments about the interpretation of the rule.

But a different conception of time best describes the condition of being too early.  Like a fruit, you want your action to be ripe.  The metaphor is one of maturity, and it is inevitably subject to graduated and individuated assessment.  The goal is to strike at a middle-point, at a moment between the time when the banana is cucumber-ish (unripe) and when it is a slimy, brown, putrid thing (overripe, or perhaps moot).  Likewise, the manipulation of time in the context of the metaphor of maturation looks distinctive.  The riper the action becomes – a function in part of the incremental passage of time – the more work the party resisting its ripeness must do to persuade the court that the time is not yet ripe to hear it.  With each day, the banana becomes more golden, and its characterization as unripe becomes more challenging.  And that is when the rhetoric of immaturity can assume an important function.

Take the HHS mandate litigation.  My own view is that these issues of time were in part responsible for the Eastern District of New York’s rejection of the standing and ripeness challenge by the federal government, where previous courts, adjudicating the claims at previous moments in time, had found otherwise.  Time had done, and may continue to do, its maturing work.

Yesterday, the United States Court of Appeals for the D.C. Circuit handed down a short order holding in abeyance Wheaton College’s complaint against HHS as, at present, unripe.  The court dutifully noted the representation of the government in the Advance Notice of Proposed Rulemaking of the forthcoming accommodation/change/emendation/difference.  But the court also said that at oral argument, “the government went further . . . . [I]t represented to the court that it will never enforce [the existing rule] in its present form against the appellants or those similarly situated . . . . We take the government at its word and will hold it to it.”  The first italics is in the original; the second is mine.

A couple of thoughts.  First, it is interesting to see that as time progresses, and the case moves toward maturity, the government must work harder, and extend itself further, to persuade a court that the case has not hit sufficient maturation just yet.  So the government made the calculation that for the sake of gaining more time, it needed to promise “never” to enforce the existing rule against the claimants, a statement that, it would appear from the court’s language, it had not made before and had a psychological effect on the court’s judgments about maturity. Second, the precise language used by the court to describe the oral representation of the government is interesting.  In order to stave off review but to keep things sufficiently vague to give itself maximal freedom, the government represented that it will not enforce the existing rule ”in its present form.”  But that simply restates the promise that it plans to amend the rule.  So one wonders exactly what of substance the oral representation adds to the government’s previous position.  Perhaps nothing.  It may instead be that the key function of the oral representation is rhetorical.  It sounds like a change of position, though really it isn’t.  But the effect of the representation is to make the banana look greener and less golden than it is.  It is the kind of rhetoric that can make a difference when the question is whether you are too early, but not too late.

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Posted in Commentary, Marc O. DeGirolami

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The Civil Rights Issue of Our Time

Posted on December 11, 2012 by | 1 Comment

There are many reasons why America seems to be moving inexorably toward legalizing same-sex marriage. The Sexual Revolution that has swept American society since the 1960s is probably the main explanation. There’s plenty of evidence that Americans, especially Americans below a certain age, accept the Sexual Revolution’s basic premise that sex is a harmless pleasure without much moral content, at least when it does not involve coercion or, sometimes, adultery. Divorce, once seen as a traumatic, though perhaps necessary, last resort for very troubled marriages is no longer regarded as an exceptional event. People speak without irony of “starter marriages;” fewer and fewer people marry at all. And these cultural changes are not limited to the Secular Left. An Evangelical pundit got in trouble recently because, he said, he didn’t realize that being engaged to one woman while simultaneously being married to another was frowned upon in Christian circles.

Given their views about sexuality and marriage, SSM seems to many Americans a non-issue. But there is something else at work, too. Much of the success of the campaign for SSM has to do with supporters’ adoption of the language of civil rights. In our national discourse, the phrase “civil rights issue of our time” immediately suggests SSM; last week’s NYT editorial is a good example. As a rhetorical device – and I don’t mean to suggest that SSM advocates are being insincere – this is a brilliant strategy. In American politics, a group that can successfully appropriate the language of civil rights is bound to win.

That’s why I was struck recently when I saw that Rick Warren, perhaps the most influential Evangelical pastor in America today, has adopted this language on behalf of conservative Christians. In an interview about the ACA’s Contraception Mandate, Warren called religious liberty “the civil rights issue of the next decade.” He was echoing, among others, the Conference of Catholic Bishops, which has also emphasized the civil rights aspect of resistance to the mandate. This is a very shrewd rhetorical move – and, again, I don’t mean to suggest anyone is being insincere. If religious conservatives are going to prevail on issues like the Contraception Mandate, they can’t hope to persuade people on the merits of traditional sexual morality, much of which the American public now finds incomprehensible. They will have to persuade people that they represent the advance of civil rights.

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Posted in Commentary, Mark L. Movsesian

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Sunday Forum at Grace Church

Posted on December 7, 2012 by | Leave a comment

For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village.  Here is the church’s description:

“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”

http://gracechurchnyc.org/2012/12/03/dec-9-the-sunday-forum-10-am-the-church-and-state-series-continues/

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An Important HHS Mandate Decision: Standing & Ripeness Satisfied

Posted on December 5, 2012 by | Leave a comment

The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).  The case is important on the issues of standing and ripeness.  The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014).  The decision is complicated and has several moving parts.  Here’s the scoop, after the jump.

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Posted in Commentary, Marc O. DeGirolami

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Gedicks on the Affordable Care Act’s Contraception Coverage Mandate

Posted on November 29, 2012 by | Leave a comment

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.

 The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

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Posted in Jordan Hummel, Scholarship Roundup

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