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Franck vs. Posner on 'Notre Dame vs. Sebelius'

Matthew J. Franck is not happy with Judge Richard J. Posner. He doesn't like how Posner treated attorney Matthew Kairis during oral arguments at the Seventh Circuit Court last week (which I wrote up here). Kairis represents Notre Dame in its lawsuit challenging the HHS contraception mandate. Franck writes:

In a colloquy with Matthew Kairis...Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.

Of course, Posner has never been known for going easy on lawyers. One law blogger said this was Posner "at his cantankerous best." Others weren't so sure. But whatever you make of Posner's approach, Kairis didn't help matters by talking over the judges and failing to answer their questions directly--or without speechifying. "Any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question," wrote lawyer and blogger Bill Wilson.

Franck's displeasure isn't limited to Posner's attitude. No, he thinks Posner has missed entirely the point of Notre Dame's complaint. Actually, it's worse than that. Franck believes he's identified "Posner's inability to perceive what's at stake in this case" (my emphasis). But judging from Franck's post, it's not clear that he has a terribly firm grasp of the issues in play.

Franck complains that Posner asked Kairis to explain what Notre Dame might settle for, if it couldn't accept the accommodation offered by the Obama administration. (Recap: The exemption worked out by HHS allows some nonprofit religious employers [those that employ and serve primarily co-religionists--dioceses, parishes, etc.] to exclude contraception coverage from their health plans. Their employees won't receive such coverage at all. The accommodation lets other nonprofit religious groups [those that employ and serve people of many faiths] avoid contracting for contraception coverage, but allows their workers to obtain the coverage from a third party.) Posner--and he wasn't the only judge to press Kairis on this point--wanted to know whether Notre Dame would be satisfied if it could just send a letter to the government, rather than the administrator of its health plan, asserting its objection to contraception and its pledge not to pay for it. That would leave it up to the government to require third parties to provide it. Kairis said it depends on whether university employees would receive coverage as a consequence of that act.

As Franck describes it, "Posner was sketching a scenario that the law does not even allow—'writing a letter to the government' such as he describes—so what was the point of his question?" Yes, it's called a hypothetical situation. Posner was trying to figure out the basis of Notre Dame's complaint. Only after a good deal of wrangling were the judges able to get Kairis to tell them that Notre Dame objects to having any role in a process that results in its employees receiving contraception coverage. The judges might have followed up by asking whether the payroll process counts. After all, you never know what your employees might buy with their salaries (and in the United States, benefits are considered part of a worker's compensation package).

Posner stepped into another Francktrap when he dared to claim that Notre Dame was eligible for an exemption from the contraception mandate. Here's how Franck explains it:

“Religious employers” such as actual houses of worship get a complete exemption from the mandate, with no provision of contraception to their employees. But employers like Notre Dame, or the Little Sisters of the Poor, only get a fraudulent “accommodation” in which their employees, by virtue of their employment, and as a result of a contractual relationship with the employer’s health insurer or administrator, get allegedly “free” contraceptives, abortifacients, and sterilization services (for whose costs nearly all such employers are actually still on the hook).

Fine, Posner did not use the language found in the Federal Register. Kairis didn't correct him--and clearly he had no problem pushing back on Posner's formulations. But did Franck expect the court to accept and repeat his definition of the accommodation? So, Mr. Kairis, is it your position that this so-called accommodation, which implicates Notre Dame in the provision of these services in a way that clearly violates its sincerely held religious beliefs, and which is a lie anyway because, come on, no such thing as a free lunch, is a bad thing then? On a couple of occasions, Posner admitted his confusion about some of the federal regulatory language, and said he would follow up with the government.

But have a look at the parenthetical phrase at the end of that block quote above: "for whose costs nearly all such employers are actually still on the hook." Franck asserts that "nearly all" accommodated employers will be "on the hook" for contraceptive coverage. That's a curious way of describing what the accommodation actually allows. First, by "nearly all," Franck means religious employers that pay premiums to insurers. For those organizations, when they contract for employee health plans, they inform the insurance company that they don't want contraceptives included in the plan. The insurance company then offers it to employees (who don't have to pay out of pocket for it) because the government says so. Even though actuarial studies have shown that offering contraception coverage is at least cost-neutral, Franck contends the coverage can't be "free," so the cost must be reflected somewhere, but even if it's not found in the payments made by the objecting employers, they're paying insurers that pool premiums, so their pure-of-intent payments may be mingled with impure ones, which makes them unacceptably complicit. Of course that's always been the case, so anyone who has ever sent payments to insurance companies--and that includes most of you, lots of bishops, and probably Franck himself--has been illicitly cooperating with evil for quite some time. Why are Catholics hearing about this only recently? (Of course, as I've written many times before, I think that's a very bad Catholic moral theological argument.)

But that's not the situation Notre Dame faces, because the university is self-insured. It pays no premiums to insurers. It covers all employee medical claims with its own money. The university pays a third-party administrator (TPA) to handle the paperwork--but those fees are a fraction of what insurance premiums would cost. The HHS accommodation requires TPAs to cover the cost of contraception coverage entirely (they can recoup their expenditures through what amount to tax rebates). That's why Notre Dame's TPA informed employees that they would need a separate customer I.D. number to receive contraception coverage. Their other I.D., presumably, entitles them only to services paid out of Notre Dame's health-care accounts. This arrangement further isolates Notre Dame from the provision of the services it objects to.

Franck faults Posner for thinking "he can make his own forays into the moral theology of the Catholic Church," but omits the fact that Notre Dame self-insures. Without accounting for that, you can't really run a Catholic moral-theological analysis of the case. I don't expect this to change Franck's mind, of course, but if you're going to tut-tut a federal judge for daring to wade into the murky waters of Catholic moral theology, you should show that you can swim them yourself.

About the Author

Grant Gallicho is an associate editor of Commonweal. You can follow him on Facebook and Twitter.



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Read my lips:





Judge Posner is certainly a bright guy, but his knowledge of Catholicism has been called into question before, particularly in 2010 when he posted the following on his blog:

Not only is it unusual for an active judge to maintain a blog that comments on matters that could well come before him in future cases, but he rightly caught flack for, among other things, linking pedophilia with homosexuality in his blog entry.

Mr Gallicho,

You are a very good writer, but not a very good cost accountant. If the third party administrator must provide the coverage, you can be absolutely certain that they will recover their incremental cost from Notre Dame, either by increasing administrative fees or not providing economy of scale discounts when otherwise justified. 

"Posner was sketching a scenario that the law does not even allow—'writing a letter to the government' such as he describes—so what was the point of his question?" 

The Supreme Court required the Little Sisters to write such a letter to the government as a condition of getting a temporary injunction to protect them until their case us decided. 

Poster asked if ND would have a quarrel with writing such a letter.

Seems like a reasonable question to me. 

If the third party administrator must provide the coverage, you can be absolutely certain that they will recover their incremental cost from Notre Dame, 

No. They are paid out of fees insurance companies pay to participate in the insurance exchanges.

Here's the Supreme Court Order in Little Sisters

Here's the Supreme Court Order in Little Sisters

Charles Ladner:  Obamacare imposes a tax on Third Party Administrators, called the Federally Facilitated Exchange User Fee.  If the Third Party Administrator has to pay for contraception coverage for the employees of an accomodated organization, the FFE User Fee is reduced to compensate the Third Party Administrator for the cost of the contraception.  Basically, if a catholic institution is an accomodated organization, the money for the contraception comes from the federal government.  The accomodated institution is not paying for contraception directly or indirectly, except insofar as they pay taxes.

Here's a link from Cigna that documents this:

Why is the federal reimbursement expressed as a reduced tax rather than having the government cut a check?  Because a direct government payment would be a tempting target for the Republicans to try to repeal, but they are unlikely to raise a tax on a group of corportations.

Ann. You are correct. Notre Dame doesn't pay. The taxpayers pay.

Thank you John Hayes for keeping us focused on the facts, which undermine all the ideological arguments presented as though they were fact.


Charles Ladner,

Please pay attention to John Hayes' comments.

The bishops can build five bedroom houses for themselves. But they can't stay out of other people's bedrooms. How this continues to remain the most talked about issue in Catholicism and now the country is a wonder. Everybody practices contraception. But it is still there, here and everywhere.

The main argument by the universities is that this impinges on religious freedom. Mostly everyone wants coverage but some Catholic professors, the Cardinal Newman society  and almost zero Christians. The arguments are all intriguing. But irrelevant.

What does ND want? They want the government to say that they are "Catholic enough" to receive a full exemption from the mandate, like a parish. That's all this is about. ND has been providing and, I'm sure, will continue to provide contraception coverage. So, this has nothing to do with Catholic moral theology and everything to do with the preservation of their publically acknowledged Catholic identity.  

Ann, Alan,

You both seem well informed on this matter, so maybe you could set me straight on the mechanics. In my insurance plan I receive from the third party administrator each year a list or formularly of the meds or drugs that are covered. If I have questions or if certain meds are not on the formularly, they provide a phone number and web address to deal with specific exceptions. I would thus presume that the third party administrator for Notre Dame's plan would simply not include the birth control or other objectionable meds on their formularly, with the proviso that the covered person can deal directly with the administrator. In my plan, if the meds or services are not provided by the plan, the plan documents and other published materials are silent. So in Notre Dame's case, I would think they would not be required to say anything about contraceptive meds in the materials provided to their employees. Neither would there be any requirement to include such meds in the formularly. If this interpretation is correct and the transaction to acqire contaceptives is soley and exclusively between the insured and the third party administrator, then Notre Dame is completely out of the transaction and there should be no issue.

On the other hand, if Notre Dame is obligated to take any part in the transaction such as publicizing the availability of the objectionable meds in communications with its employees or if it is required to include such meds in its formularly, then it is an entirely different matter. In such case Notre Dame might reasonably be seen to be an enabler or at least complicit in fostering behavior contrary to the Church's teachings.  

Mr. Ladner, according to this letter, the TPA has sent out separate insurance ID cards for people to use only when buying contraceptives.'s%20contracept...

That is from the website of Sycamore Trust, which is a non-profit set up by ND alumni "concerned about preserving the Catholic identity of the University" 


Here is the notice the TPA sent to members of the ND plan explaining that ND will not pay for contraceptives but people who want them can request a membership ID card in the "Meritain Health Conttraceptive Services Payment Plan," which will pay for them.

A Summary Plan Description of the Meritain Plan is attached to the letter

Both are attached to this court filing as "Appendix A"

So if Notre Dame does not pay and Notre Dame does not process or in any way involve itself in a transaction one of its employees may undertake to acquire objectionable meds from an organization not affiliated with the university, where is the problem? I must be missing some detail or nuance. (Of course, I am assuming that Notre Dame is neither publicizing the availability nor otherwise facilitating the transaction.)

Here's the decision written by Judge Posner for the Court.

I've read it but perhaps Grant would like to do a post reviewing it. 

Mr. Ladner,

Mr. Gallicho explains who pays, and it's not Notre Dame:

"The HHS accommodation requires TPAs to cover the cost of contraception coverage entirely (they can recoup their expenditures through what amount to tax rebates). "

Charles Ladner:  Notre Dame objects to the fact that they have to notify the government that they are claiming the right to a religious accomodation from the contraceptive coverage rule.  They regard the notice as an unacceptable "trigger" which starts the train of events that result in the employee getting contraceptive coverage.  It seems to me that ND's principle, if applied consistently, would create anarchy:  anyone could decide to ignore any general law, provided they claimed this was due to a religious belief.  Walmart, for example, would probably decide the corporation had a religious objection to paying the minimum wage.

The problem with the "trigger" reasoning, in addition to allowing those with religious objections a form of "self-policing" that is probably inimical to a society that takes the rule of law seriously, is that Notre Dame does not have the "right" to prevent its employees from obtaining contraception -- only the "right" (contested but putative, anyway) not to be the instrument of that action.  The notification is the means by which ND tells the government it won't be the instrument.  The fact that it sets in motion the alternative means by which the employees get the contraceptive coverage anyway is not a legally protected interest that ND should even have the right to assert because it, ND, does not have a legally protected interest in preventing its employees from obtaining contraception.  Allowing ND to assert an interest in prohibiting its employees from obtaining contraception that is paid for by taxpayers generally would give to ND a status that is superior to the sovereign in determining what rights certain U.S. citizens have.  That would be intolerable.

P.S., regarding Posner's fairness or civility.  99% of appellate cases are decided on the briefs and the judges already know how they are going to vote.  Oral argument is often a way to clarify a party's position or to test their responses to specific questions, or sometimes just to get them to respond to a question that one judge has asked another when they disagree about a case.  Most appellate judges do not suffer fools gladly and someone who talks over a judge better be sure the other two members of the panel are on his side.  This is a lot about nothing.  A judge should not be required to understand Catholic doctrine to resolve a legal dispute in the United States of Americal.

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