This article by Americans United's Senior Litigation Counsel Gregory M. Lipper originally appeared on Harvard Law's Bill of Health blog.
On Thursday, the Eighth Circuit all but assured that major parts of the Affordable Care Act will return to the Supreme Court’s chopping block. This time the issue is whether an accommodation—enabling religious objectors to opt out of offering contraceptive coverage to their employees—itself violates the Religious Freedom Restoration Act (RFRA). The Eighth Circuit ruled for the plaintiffs in Sharpe Holdings, Inc. v. U.S. Department of Health and Human Services, along with a companion case brought by Dordt College. The court concluded that the accommodation substantially burdened plaintiffs’ religious exercise and that the accommodation was not the least-restrictive means of ensuring that the plaintiffs’ employees had contraceptive coverage.
The Eighth Circuit’s substantial-burden ruling is unprecedented. Indeed, the contraception coverage cases appear to be the first time that exempted entities have sued to prevent the government from implementing a religious exemption. Like the other nonprofit organizations challenging the contraception regulations, the plaintiffs in this case are not required to cover contraceptives. All they have to do is provide written notice (to either their plan administrator or the Department of Health and Human Services) that they object to providing contraceptive coverage and wish to opt out. Once they provide that notice, the government arranges for the plan administrator to arrange for contraceptive coverage—at no charge to either the plaintiffs or their employees.
The plaintiffs insist that by opting out of providing contraceptive coverage, they “indirectly provide, trigger, and facilitate that objectionable coverage through the … accommodation process.” Every other federal appeals court to have addressed these challenges—even courts as conservative as the Fifth Circuit—has rejected this argument. Indeed, the plaintiffs are being asked to do what they have already done voluntarily: state, in writing, that they object to providing contraceptive coverage to their employees. And it is the HHS regulations, not the plaintiffs’ written notice, that facilitates the provision of contraceptive coverage to plaintiffs’ employees.
But the Eighth Circuit agreed with the plaintiffs, and held that a “substantial burden” is literally whatever the plaintiffs says it is. According to the Eighth Circuit, “we must accept [the plaintiffs’] assertion that self-certification under the accommodation process … would violate their sincerely held religious beliefs.” Even though the law entitles plaintiffs’ employees to contraceptive coverage—whether or not the plaintiffs wish to provide it—the court said that “[t]he question here is not whether [the plaintiffs] have correctly interpreted the law, but whether they have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit” in providing the objectionable coverage.
I can understand the concern, also expressed on this blog by Holly Fernandez-Lynch, that anything other than blind deference would require courts to second-guess plaintiffs’ religious beliefs. But a court can accept the plaintiffs’ religious conclusion and still recognize that their legal claim arises from a misunderstanding of the underlying regulatory scheme. HHS regulations start from the premise that employees will receive contraceptive coverage. That coverage will come from employers, unless they opt out; if they do opt out, the coverage will come from someone else. In other words, the provision of coverage is a given—the only question is who will do the job. That’s just the way the HHS regulations work, and no independent assessment of plaintiffs’ theology is required to interpret the regulatory scheme. And if we agree that RFRA doesn’t give the plaintiffs the right to control the behavior of third parties, then the plaintiffs have nothing left to object to.
Supporters of the Eighth Circuit’s approach, moreover, have yet to justify its remarkable implications. If requesting an exemption substantially burdens religious exercise because the government intends to make other arrangements to provide contraceptive coverage to the plaintiffs’ employees, then courts would be required to find a substantial burden in the following scenarios:
- An objector to the draft refuses not only to serve in a war, but also to request an exemption from doing so. He claims that if he requests an exemption from the draft, he will trigger a process in which the government drafts someone in his place.
- An IRS employee refuses not only to process a tax refund for a same-sex married couple filing a joint return, but also to hand over the couple’s tax returns to another employee. She claims that if she turns over the file, she will trigger a process in which someone else will process the same-sex couples’ joint tax return.
- A judge opposed to the death penalty refuses not only to hear a death penalty case, but also to recuse herself from doing so. She claims that if she recuses, she will trigger a process in which the court will assign another judge to hear the case in which the death penalty might be applied. The judge insists that the case languish unadjudicated in her courtroom.
In the view of the plaintiffs and the Eighth Circuit, courts must conclude that each of these scenarios presents a “substantial burden,” and then must apply strict scrutiny to the requirement that the draft objector opt out, the IRS employee hand over the file, and the trial judge recuse. (With respect to the draft objector, the lawyer representing Notre Dame in its contraception challenge actually admitted as much during oral argument in the Seventh Circuit.)
This would turn the RFRA “substantial burden” requirement into a formality. Congress, however, did not write RFRA to say, “The entire federal code will be subject to strict scrutiny so long as the plaintiff utters the phrase ‘substantial burden.’” That limitless conception of “substantial burden” doesn’t work in a regulatory system that’s actually trying to function.
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My next post will examine the 8th Circuit’s conclusion that the contraception accommodation failed to satisfy strict scrutiny. In the meantime, I’ll offer a few other observations about the “substantial burden” question, which I’ll examine in more detail in the future:
- I continue to think that the government has made a mistake by declining to challenge, or even take discovery on, the sincerity of the plaintiffs’ assertions that they have a genuine religious objection to merely requesting an exemption from the contraception regulations. There is reason to think that these litigation claims of substantial burden are insincere.
- The 8th Circuit accepted the plaintiffs’ assertions that certain forms of contraception (emergency contraception and the IUD) “are functionally equivalent to abortion on demand.” Virtually all scientific evidence suggests otherwise, even under the plaintiffs’ expansive definition of abortion. There is a difference between deferring to a plaintiff’s religious view (e.g. my religion prohibits me from eating pork) and accepting a plaintiff’s mistake of fact (e.g. spinach is a pork product); courts need not and should not do the latter.