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Two More Contraception Mandate Decisions

The past week has seen two new decisions in the fight over the HHS contraception mandate. Interestingly, both involved motions for preliminary injunctions by for-profit commercial enterprises. Likelihood of success on the merits of the claims is a central inquiry when courts consider a request for a preliminary injunction and so courts' decisions to grant or deny those motions provide a useful window into judges' thinking about the lawsuits. In these two very similar cases, the two federal district courts reached seemingly diametrically opposed conclusions about the mandate's likely legality, one court granting the motion for a preliminary injunction and the other denying it. On closer analysis, however, the two opinions are less far apart than they initially seem. A few thoughts after the jump.

The first case, decided last week, is Tyndale House Publishers, Inc. v. Sebelius. The second case, decided yesterday, is Hobby Lobby Stores, Inc. v. Sebelius.In the first case, the district court for the District of Columbia held that the mandate likely violated RFRA, and it therefore granted the requested preliminary injunction. The court began by side-stepping the government's argument that a for-profit corporation cannot exercise religion, declining to reach the issue directly. Instead, it allowed the corporation to assert the religious liberty claims on behalf of its owners. It then went on to hold that the mandate likely imposes a "substantial burden" on the owners' religious exercise, the threshold inquiry for triggering strict scrutiny of the law under RFRA. To survive strict scrutiny, the government must identify a compelling interest in enforcing the law. The court denied that the government had a compelling government interest in enforcing the mandate against religiously motivated, for-profit employers in light of the many exceptions to the mandate the government had already created.In the Hobby Lobby case, the district court for the Western District of Oklahoma expressly denied that corporations can raise RFRA or Free Exercise Clause claims. But it nevertheless considered the owners' claim that the imposition of the mandate on the corporation violated their own religious exercise rights. It concluded that the mandate does not impose a substantial burden on the individual plaintiffs' free exercise of religion because the causal chain between the mandated behavior (the provision of health insurance by the corporation to its employees) and the evil they complained they were being forced to facilitate (the use of contraception) was too long and "indirect."One feature of the substantial burden finding in Tyndale significantly limits its implications for other cases. In considering an earlier case from the Eastern District of Missouri (O'Brien v. HHS), which held that the mandate did not impose a substantial burden on a Catholic-owned for-profit company, the Tyndale court did not reject the O'Brien court's decision (or even its reasoning) out of hand (as this descriptionof Tyndale at the National Review erroneously implies). Instead, its principal response to O'Brien was to distinguish the case on the facts. Specifically, the Tyndale court placed a great deal of emphasis on the fact that the employer in Tyndale was (unlike the employer in O'Brien, or in Hobby Lobby for that matter) self-insured, implicitly suggesting that it might have ruled differently if presented with an employer who participated in a group plan. "This difference in the manner in which coverage is provided is significant," the Tyndale court said, "because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the 'degrees' of separation that the court deemed relevant in O'Brien." I agree with the Tyndale court that this distinction between self-insured and group plans is a significant one (at least as a matter of judging the proximity of the employer's involvement with the employee's use of contraception). Its emphasis on that distinction limits the reach of the Tyndale court's reasoning. But the question the distinction raises is whether burdening the choice to engage in self-insurance (which a religious employer may choose to engage in for non-religious reasons) constitutes a substantial burden of religious exercise.The Tyndale court did not discuss in great detail the nature of the substantial burden, continuing the trend of courts that have ruled against the mandate largely treating the question of the substantial nature of the burden as turning solely on the size of the penalty for violating the mandate rather than the degree of burden that compliance with the mandate would constitute on the plaintiffs' free religious exercise. This strikes me as a problem. A burden can fail to be substantial if there is only a small penalty for noncompliance. But the cost of noncompliance is only half of the equation. A burdencan also fail to be substantial (even in the presence of severe penalties for noncompliance) if compliance is not genuinely inconsistent with exercise of their religion (e.g., by imposing the penalty for not doing something their religious beliefs make merely disagreeable but not impermissible). Although courts have to tread lightly to avoid being put in the position of judging the truth of claimants' religious views, I do think they are entitled to probe the (internal) logic by which a claimant argues that the burden of compliance on their religious exercise is substantial rather than trivial. By utterly failing to interrogate the nature of the claimed burden, even on the claimant's own terms, the Tyndale court dilutes the "substantial" requirement.In contrast with the court in Tyndale, the Hobby Lobby court grappled at length with the substantiality question. Its efforts were somewhat unsatisfying, but I think it deserves credit for taking the issue seriously. The court employed a definition of "substantial" adopted by the Seventh Circuit: "a substantial burden on religious exercise is one that necessarily bears direct, primary and fundamental responsibility for rendering religious exercise . . . impracticable." Although the court got hung up on the question of directness and indirectness, it seemed to be gesturing in the direction of a distinction between proximate and remote involvement in the supposedly evil act. It seems to me perfectly appropriate for courts to take a claimant's religious beliefs about what is evil (i.e., the use of contraception) as given but then to ask how involved with such an evil the law requires the claimant to be and how the claimant has treated similarly remote (or proximate) cooperation with the same evil in comparable contexts. Impracticability is also an important part of the Seventh Circuit's definition, since many things that burden religious exercise (e.g., by cutting off paths we'd rather have available or by requiring things we'd -- all things considered -- rather not do) do not make the practice of one's faith impracticable.This brings me back to the Tindale court's group insurance/self-insurance distinction. If the contraception mandate cuts off the option of self-insurance for certain religious employers, by requiring self-insured employers to cooperate too closely with the employee's choice to use contraception, the question still remains (under the Tyndale court's reasoning) whether making that option less attractive (or even unavailable) to religious employers counts as a substantial burden. If it does not count as a substantial burden to require an employer who participates in a group plan to pay for contraceptive coverage (as two district courts have now held and as the Tindale court at least suggested), then burdening self-insurance with the mandate probably should not count as a substantial burden, since the self-insuring employer can always choose to shift to group coverage.

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It will be interesting to see if these muchly aggrieved uber religious employers will be offering IVF and/or vasectomy coverage under their plans.I also wonder if these hyper religious folks, if they went to work for a Christian Science employer, would be so accepting of the fact that they would not be offered blood transfusions because of the CS employers' religious scruples.BTW, blood transfusions cost just a wee bit more than contraceptives.

I think the very interesting recommendation by ACOG (reported on CBS last night) to make birth control pills an OTC drug is an interesting twist in the debate over contraception coverge.Most insurance policies do not now cover OTC drugs b/c they're readily available, don't require a doctor visit for a scrip, and b/c generics reduce prices within reach. Will changing the status of these drugs provide a "solution" for this conflict between Obamacare and those with religious objections? People will be able to buy their own, as they do condoms, out of their own pockets, nobody's business. All will be well.Oh, except for women who might be at risk for side effects.I was stymied by the ACOG move given that more and more women are going off BC pills and HRT. One spokesman for ACOG said the Pill had been around for so long that women were perfectly capable of self-screening. Hmmm. Even a 12-year-old girl? http://www.cbsnews.com/8301-18563_162-57552835/doctors-call-for-birth-co...

Jim McCrea raises the point that has been unclear to me throughout this case. Do, in fact, Christian Science employers (not only the "church" itself, but employers who profess Christian Science) refuse blood transfusions in their insurance programs? Is that the same as Jehovah's Witnesses - both in their own institutions and from employers of that belief? Are these groups self- insured? Have their been any precedents from cases if they do have these policies? Are there any other religious entities or individuals that have brought forth other similar suits?I appreciate any direction in this...

This is from a UK hospital advising its medical staff about religious Issues affecting treatment. As I understand it, Christian Science does not consider recourse to medical treatment to be intrinsically evil and recognizes that a Scientist may make a prudential decision to seek medical intervention, particularly for children. "BLOOD TRANSFUSION - The Christian Scientist would have no objection to blood transfusion as such. However, they would regard it as a material method of treatment, and therefore in conflict with their reliance on spiritual means of healing alone. They would therefore not normally wish to be either a donor or a recipient."http://www.ashfordstpeters.org.uk/attachments/526_Christian%20Scientist.pdf

Thank youj, John...I am going to ask some Christian Science acquaitances about this aspect also... just out of curiosity.. I know the rulings about childrena nd Jehovah's Witnesses on this, but am still intersted on what this means in the US rgarding the current controversy...

but then to ask how involved with such an evil the law requires the claimant to be Eduardo,This just seems like a backdoor way for the government to evaluate the religious claims. If the believer says they are material then its seems like the government needs to accept that, otherwise it is putting itself in the position of evaluating the validity of the religious beliefs. Formal, proximate and remote cooperation are religious concepts, not legal ones. The compelling interest in the least restrictive manner keeps the government away from the validity of the religious claims.Further, I think the non-profit/for-profit distinction is a red-herring. Clearly as a sole-proprietor, my business and my religion are inextricably linked because I am one and the same person. Choosing to operate my business in a corporate form doesn't change that. And adding other shareholders, just exercises my right to freedom of association.

John. Thanks for that UK information. However, this is the US and what if a CS employer declined to offer blood transfusions in health care programs (insured or self-insured) to her/his employees?Can employers, because of religious scruples, decline to provide IVF or vasectomies for their employees?This could become a real nightmare, the broadness of "religious scruples" in this country.

Jim, minor point, but I don't know of any health insurer that covers IVF. Vasectomies, yes.

Bruce wrote: "The compelling interest in the least restrictive manner keeps the government away from the validity of the religious claims."As I understand the RFRA, if the government can demonstrate compelling interest and least restrictive manner, there is no limit to the burden it can put put on anyone's free exercise of religion. On paper,at least, there is no balancing test by which a bigger burden requires a bigger compelling interest. So he court doesn't have to evaluate the burden, although it might throw out cases based on obviously frivolous claims. Although the complaints I have read include first amendment claims, given the Supreme Court's prior decisions it seems likely that RFRA is what will determine the outcome.

Jim McCrea wrote "John. Thanks for that UK information. However, this is the US and what if a CS employer declined to offer blood transfusions in health care programs (insured or self-insured) to her/his employees?"It wouldn't be a good business decision to do that. You pay the lowest tax penalty if you just don't provide any health insurance to your employees. You pay a much higher tax penalty if you provide insurance but exclude some of the required coverages. I haven't seen any cases filed by Christian Science or Jehovah's Witnesses employers. I don't know whether their theology includes the concern about cooperation in evil that ours does. Do we know that they have a problem with providing insurance coverage for benefits they wouldn't use themselves?

As far as birth control being sold OTC, may I point out that all states sell alcohol as an OTC drug and still manage to require ID as proof of age? OTC doesn't automatically equal 12-year-olds with access, unless you factor in shoplifting. There are also retail techniques to prevent that, such as the methods currently employed in many locations to restrict access to Sudafed--no prescription needed, but it is kept behind the counter and in some states a signature is required. There are plenty of middle-ground options that would avoid the problems of the current mandate controversy. The biggest barrier to these in my opinion is the medical offices that would lose the revenue from hundreds of thousands of otherwise healthy women who currently have annual appointments solely to get their BC prescriptions renewed.

Jean Raber, changing to OTC will not meet the HHS goal of making contraception available without cost to employees. It will just shift the cost from the employer/insuror to the employee.I take omeprazole which is also sold OTC as Prilosec. After buying it OTC for a while at a very substantial price, i asked my doctor to write a prescription for for it. Now it is paid for by my insurance.

After five years in the British courts, the Leeds Catholic adoption agency has exhausted its appeals against a decision that it cannot refuse to place children with same-sex couples.The explanation of why it will have to close down its service seems strange - because it will no longer receive donations if it acts against its doctrine. "The Leeds tribunal refused the argument that homosexual candidates for adoption could go elsewhere. The former bishop of Leeds, Bishop Arthur Roche, had claimed during the procedure that the law ought to respect the Churchs opinion in the matter, just as it does in not obliging her to celebrate same-sex unions. The court answered that the religious ceremony is a private matter, whereas the adoption procedure is a public service partially funded by the State, who thus has a right to oversee this activity.The association pointed out that this decision was going to force it to give up its activity, since once it acts against the demands of its own doctrine, it will no longer receive the donations that allowed it to continue its activity."

All this counting of angels on pins could have been avoided if Obama had cared enough about religious sensibilities to resist the temptation to give a favor to one of the groups in his political coalition. Politics over religion, clearly. In other words, hostility to religion.Of course, in your view, religion has no business messing with women's bodies. So, good for politics, eh? Damn the backward bishops; full speed ahead.

Perhaps the Administration did cave to its interest groups since it obviously did not anticipate this reaction. However, no one in this blog has completely satisfied the issue about how other religions deal with their own religious restrictions about certain health care. Until that is more common knowledge and/or adjudicated, I don't know how we expect a fair analysis of how this should affect Catholic institutions. And then we'e the Taco Bell arguments!This is a hornets nest, but I find myself very surprisingly leaning with Antonin Scalia and not with the always so insightful and balanced Tom Reese.

Maybe CS and JW employers don't have the same restricted ideas of cooperation with evil as do SOME RCs. Does the same level of concern for evel .. remote, material, whtever .. apply to cooperatin with the death penalty? The idea that contraception is evil and the death penalty is "prudential" boggles my mind.

Here is a statement from a Christian Sceince group in Illinois:"Another remark made recently is that if there is a religious exemption for institutions from the employer mandate, that Christian Science employers could decide no health insurance for their employees, whether they were Christian Scientists or not. This is ridiculous. As a matter of fact, I had an employer many years ago who was a Christian Scientist and her business included health insurance for its employees that covered both Christian Science and medical care.Christian Scientists do not dictate the health care decisions of other individuals, whether they are Christian Scientists or not. There are certainly no Christian Science business owners who would impose their religious beliefs on their employees in this way.And:The recent heated debates concerning church mandates to cover contraceptives and abortion in their health insurance coverage has unleashed many opinions. This has been a very emotionally charged debate. Our Church, The Church of Christ, Scientist, is not involved in this issue. It is understood as a personal decision."http://www.csillinois.com/2012/02/27/christian-science-and-the-debate-ov...

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About the Author

Eduardo Moisés Peñalver is the John P. Wilson Professor of Law at the University of Chicago Law School. He is the author of numerous books and articles on the subjects of property and land use law.