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.

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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