Friday, January 03, 2014

Hey Little Sisters, What Have You Done?

By Mike Dorf

On New Year's Eve, Justice Sotomayor issued a stay in Little Sisters of the Poor Home for the Aged v. Sebelius, thus ensuring that, for the time being, the provisions of the ACA regs that guarantee contraceptive coverage will not be applied to them.  Justice Sotomayor gave the government until Friday to file a response.  The government filed its brief on Friday and it is, in a word, devastating.

Unlike the plaintiffs in the Hobby Lobby case, who do not qualify for a religious exemption under the ACA and therefore argue that they are nonetheless entitled to a religious exemption under the general background principle of the Religious Freedom Restoration Act (as I explained here), the Little Sisters plaintiffs do qualify for an exemption from the requirement to provide employer-based health insurance for their employees that includes free contraceptive coverage.  But, as the government brief notes, not only are the Little Sisters not required to pay for contraceptive coverage for their employees; those employees do not even get free contraceptive coverage from a third-party insurer.  Here's the money quote from the government's brief:
[The plaintiffs] need only self-certify that they are non-profit  organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan.  At that point, the employer-applicants will have satisfied all their obligations under the contraceptive coverage provision. Thus, as this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather about whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.
When I first read that I thought it couldn't possibly be right, but then I read the rest of the government brief and concluded that it is.  The government notes that the piece of paper that the plaintiffs need to sign to certify that they have a religious objection to providing health insurance with contraceptive coverage authorizes the third-party plan administrator to decide whether to provide health insurance that includes contraceptive coverage, but that another statute--the Employee Retirement Income Security Act (ERISA)--provides that "church plans" need not provide contraceptive coverage. Thus, the government argues extremely effectively, even if a religious employer's signing of a piece of paper that has the consequence of facilitating some third party to provide contraceptive coverage for employees can be construed as a "substantial burden" on religious exercise under RFRA, here there is not even that burden.

But I would go further.  I would say that even if the consequence of signing the paper were that the employees get contraceptive coverage, that still would not count as a substantial burden under RFRA.  I think I can illustrate the point by an analogy.

Federal law currently permits conscientious objectors to avoid military service.  Suppose that Congress reinstates the military draft, with an individualized draft lottery based on Social Security numbers.  Now suppose that new regs provide that in order to acquire conscientious objector status, an American who receives a draft notice must sign a certification that he has a religious objection.  (The statute is written in terms of religious objections but case law defines eligibility somewhat more broadly.  For my purposes, the analogy works better if we only consider religious objectors.)  Now suppose that a Quaker who is categorically opposed to war gets a draft notice.  If the Little Sisters plaintiffs are right, then he is not only entitled to his exemption from the draft; he's entitled to get his exemption without even signing the piece of paper saying he is entitled to his exemption.  Why? Because if he signs that piece of paper, then the government will draft the next person on the list and so he will be "participating" in the war effort to which he is religiously opposed.

Indeed, it seems to me that my hypothetical Quaker has a much more sympathetic case than do the Little Sisters plaintiffs, even on the assumption that the latters' certification leads to a third party's providing free contraceptives to the employees.  The employees probably were going to get contraceptives anyway, whereas the Quaker who signs the form really does lead the government to draft one more person into the military.  So the Quaker has a better argument that his signing the form is a kind of participation in what he regards as evil.

And yet it would be crazy to say that the right to a religious exemption is a right to a religious exemption from the regime for administering religious exemptions. In my hypothetical case, the conscientious objector loses and, a fortiori, the Little Sisters plaintiffs should lose even if their employers were going to get contraceptive coverage.  Double a fortiori, the Little Sisters plaintiffs lose in the actual case where their employees don't even get contraceptive coverage.  And triple a fortiori, they haven't made the extraordinary showing necessary for a stay.

In thinking about this case, I tried to concoct various analogies but I couldn't come up with a claim that was as weak as the actual claim.  For example, I thought that if the Little Sisters win, then RFRA provides Quakers and other religious objectors with the ability to deduct from their taxes the pro rata share of the federal budget that goes to the military.  But the thing is, there's actually a better argument for that result than for the result that the Little Sisters seek.

Justice Sotomayor never should have granted this stay.  She or the full Court should dissolve it posthaste (which is not to say that they will).


  1. There is something I am not getting in all of this. The Little Sisters are claiming that, by signing the self-certification form (SCF), they are designating such-and-such a third-party administrator (TPA) as the administrator of a scheme that provides contraceptive coverage to their employees. The scheme itself, they say, is sinful, because it enables (or encourages) their employees to commit the sinful act of purchasing and using contraception. Therefore, the Little Sisters are claiming that by signing the SCF, they are choosing which of a number of TPA's have volunteered for the job as the administrator of a sinful scheme.

    Consider the following analogy. Suppose the government requires (perhaps in order to reduce the chances that rabies will infect humans) that all household pet dogs be killed. I object to this scheme, finding it horrible and unjustified (even sinful). Abby, Barbara, and Carrie have all volunteered to serve as pet killers. The government now tells me that I am the one to decide which of Abby, Barbara, and Carrie will be the one to kill my dog. If I refuse to make this decision, I will be fined. It seems to me that my objection to the government's coercing me into making this choice is reasonable.

    One way to avoid this problem is for the government to make the choice if I refuse to make it. Similarly, one way to avoid the problem with the contraceptive coverage mandate is for the government to choose the TPA that will administer the contraceptive coverage mandate if the Little Sisters refuse to choose which TPA will be the agency to do so.

    Another way to argue for a disanalogy is to claim that contraception use is clearly morally permissible, and that the government does not commit a wrong when it requires an organization to participate in a scheme that facilitates something that is clearly morally permissible, even if there are religious objections to it. The thought here is that the government is not required to accommodate religious objections to activities that are clearly morally permissible. Suppose, for example, that the Big Sisters believe (on whatever doctrinal grounds) that it is sinful to pay the government for a permit to remodel their church. Surely it does not follow that the government should make an exception for the Big Sisters in the case of remodel permits. If there were even a colorable moral reason to oppose contraception, then that would be one thing. But there is no such moral reason. (I don't have the space to discuss that here.)

    It seems to me that the government's brief skirts the real issues here, because it does not address the gravamen raised by the Little Sisters. What am I missing?

  2. Sam: What you are missing is the fact that the Little Sisters make a RELIGIOUS claim, which for them is a moral claim but need not be a moral claim that you or I find persuasive in order for it to be protected as a matter of law. Here are a few examples of practices that are clearly morally permissible if assessed by conventional morality independent of religious tenets:
    1) The eating of leavened bread during Passover;
    2) Drinking a single beer;
    3) Dancing.
    RFRA would entitle religious Jews to exemptions from a law requiring 1), religious Mormons and Muslims to exemptions from a law requiring 2), and adherents of various Christian, Jewish and Muslim sects to exemptions from a law requiring 3). The fact that you (and I) believe that contraception is not immoral is simply irrelevant here. The reason the government did not make the argument you advance is that it does not match up with the categories made salient by RFRA.

    Meanwhile, if the facts were as your dog-killing analogy suggests--if the government were forcing a kind of gratuitous Sophie's choice on religious employers-- then the Little Sisters potentially WOULD have a valid claim under RFRA. But they are not being gratuitously told by the government to facilitate the provision of contraception by a third party. The government can't simply take over the process and designate a TPA because the government does not know which religious employers have religious objections to providing health insurance covering contraception until those employers come forward. That's why the government asks those employers who do have an objection to sign a SCF--precisely so that they may be excused from participating in the provision of contraception.

  3. Thanks for this helpful response, Mike.

    On the first point, if the negative consequences of religious exemption were serious enough, then I would think that exemption would be far from automatic. RFRA works easily in cases such as your (1), (2) and (3) because it's difficult to see any negative consequences flowing from exemptions in those cases. But exemption from the contraceptive mandate is something else altogether. Still, I understand why the government didn't go there.

    On the second point, things are trickier. You say the following:

    "[The Little Sisters] are not being gratuitously told by the government to facilitate the provision of contraception by a third party."

    This may be true, but it doesn't appear to get at the main issue, which is this. The Little Sisters are being told by the government to choose which provider will facilitate the provision of contraception to their employees. What the government is requiring is unnecessary, because the government could find a TPA to administer the contraceptive coverage (Medicare or Medicaid, if all else fails). You say:

    "The government can't simply take over the process and designate a TPA because the government does not know which religious employers have religious objections to providing health insurance covering contraception until those employers come forward."

    But this I don't follow. Suppose the Little Sisters make clear, through some signed form or otherwise, that they have a religious objection to providing health insurance covering contraception. Now the government has knowledge it did not have before. What prevents the government, now that it has this knowledge, from taking over the process and designating a TPA (just for the administration of contraceptive coverage)? As far as I can tell, nothing does.

    One more thing. I don't think that the Little Sisters would object to signing a SCF as long as signing the SCF did not, given the terms of the law, amount to choosing which TPA will administer contraceptive coverage. The Little Sisters object to being forced to make a choice, a choice that requires them to be, in the sense that they are having some trouble articulating, complicit in the facilitation of sin. Note that the relevant Sophie's choice is not between paying a large fine and facilitating the provision of contraception: it is between paying a large fine and choosing which of various TPA's will administer the contraceptive mandate.

  4. 1) I agree that in the actual case rather than my hypothetical examples, even a finding that the law substantially burdens religious exercise does not mean that an exemption automatically follows. There remains the question of whether the law is narrowly tailored to promote a compelling interest. Arguably, that could be true here.

    2) I take it the objection is to the portion of the reg that says that self-certification "“will be treated as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits pursuant to section 3(16) of ERISA.” My understanding is that this is not the point at which the employer designates the third-party administrator as the insurance provider; the obligation to provide a third-party administrator is described elsewhere in the law. So the ACA regs don't say to religious employers: You don't have to provide contraception but you need to choose someone to provide contraception. They say something more like: If you don't want to provide contraceptive coverage, then your already-designated third-party administrator will be tasked with the job of doing so when you exercise your opt-out right.

    Now I agree that the reg I've quoted is not strictly necessary. The government could provide contraceptive insurance directly for the relevant employees following self-certification. But the whole structure of the non-Medicaid ACA is private-insurer-based, so I don't think HHS had the option of doing that and, in any event, I could imagine that the Little Sisters (or some other religious employer) might think that even THAT counts as participating in evil. "We don't want our self-certification to be the trigger for the provision of contraceptive insurance coverage--whether by our third-party administrator or the government." But I just don't see how the government can accommodate that broad a conception of impermissible participation without unraveling the law. I think that my Quaker has a much stronger claim when he objects to paying taxes that support he military, and even that claim doesn't count.

    Thanks for the comments. I think I may follow up on some of this in a piece I'm writing next month for a SCOTUSblog symposium on the Hobby Lobby case.

  5. The analogy highlights the silliness of focusing on the act of signing a piece of paper, but I think it avoids other aspects of participation.

    Once the form is signed, not only are the employees provided birth control coverage (analogous to someone being sent to war), but they are provided this coverage *through the plan the employer set up as part of their compensation package*. The form is just adding insult to injury.

    The employer pays the same amount and the insurer provides the same coverage. The idea is that encouraging the use of birth control saves money for insurers, so the insurer provides contraception coverage "at its own cost" ... but there's no cost.

    You may disagree that any accommodation is necessary to begin with, but it's basically undeniable that this is a shell game. The form does not get an employer out of an obligation to providing an insurance plan that covers contraception.

  6. For reasons I do not understand almost everyone is refusing to look at the real issues here. These issues do not involve religious freedom. Instead there are two things happening here.

    1. The people supporting the order of nuns here are not concerned about or trying to exercise their freedom of religion. Instead they are trying to impose their religion on those who do not believe or do not accept the tenets of that religion. They are trying to prevent contraception services and products from being available to those, who are the overwhelming majority of Americans, who do not believe that contraception is a mortal sin. This is religious bullying at its worse. It is akin to strict Jewish religious adherents trying to ban pork or attempting to prevent any commercial activity on the Sabbath.

    2. The anti-Obama forces are using the nuns in a craven political exercise. An order of nuns has been selected so that the headlines can and do read “government opposing nuns”.

    No one, absolutely no one is interfering with the freedom of religion of these nuns and others who do not wish to utilize contraception, but they are interfering with the desire of these individuals and groups to impose a theocracy on the United States, to impose their religious beliefs on those who have chosen to believe otherwise.

    If you believe contraception is wrong, do not use contraception services or products. Really, it is that simple; really, no one will interfere with your right to do so.

    Jefferson would weep. The rest of us do so in his place.

  7. Hi Mike: Thanks again for your helpful comments.

    You're right about the portion of the reg on which I am focusing. It seems to be central to the LS response to the government's brief. The worry is that the regs, as written, are inconsistent. If you are right, then the regs say somewhere that the designation of TPA occurs at T1, but the regs also say, in the portion to which LS objects, that the SCF "will be treated as a designation of the TPA" at T2. I'm not sure what should be done about this kind of inconsistency.

    The obvious option would be for SCOTUS to grant cert and clean up the mess, which seems to have been feeding a lower court split. The question is what to do with inconsistency. I do not know the relevant precedents, but it seems to me that striking down the entire law because of this matter would be crazy. The reason is that the inconsistency can be dealt with easily simply by excising the provision of the regs to which LS objects.

    The reason this is so is that the nub of the complaint does not apply to T1-designation, if the regs are as you describe them. At T1, LS chooses the TPA that will provide health insurance coverage, knowing two things: (i) that at T2, LS will be given the chance to opt out of paying for any contraceptive coverage and that, if LS does so, then no part of the health insurance plan LS has picked will cover contraceptives, and (ii) that if LS chooses to opt out at T2, then *the government* (not LS!) will designate the TPA chosen by LS at T1 as the administrator of government-mandated contraceptive coverage. The point here is that X's knowledge at T1 that Y will choose such-and-such TPA to provide contraceptive coverage if X opts out at T2 does not, in and of itself, constitute X's choice of TPA at T1 to provide contraceptive coverage.

  8. I think the Dismal has it pretty much right.
    Mike, if you have time, could you explain why everyone assumes that (a) providing employees insurance coverage under which they may (but do not have to) obtain contraceptives is a more cognizable burden on religious exercise (freedom?) than (b) paying employees a wage with which they may (but do not have to) purchase contraceptives. In either case, money which used to be the employer's, could be used to obtain contraceptives.
    I'm pretty sure an objection to b would be laughed out of court, but challenging a gets you to the Supreme Court.

  9. Let me say in response to TDPE et al that you may be right about the politics/motivation but that I think there are some serious questions raised about what counts as "participation" in (what persons may regard as) evil, which I'll address in my next Verdict column, on Jan. 15.

    Thanks to all for an interesting exchange.

  10. Marty Lederman over at Balkanization has written extensively about this case.

    One comment says that the employees are "provided" birth control regardless. The brief notes, however, "although the third-party administrator could theoretically choose to provide contraceptive coverage in the manner set out in the regulations, the law does not require it to do so."

    The accommodation here, as touched upon by the brief, also reduces the involvement required by certain groups. As suggested by Prof. Dorf, the level of "participation" matters, even if at some point a person gets birth control. After all, the groups allow the employees to use their salary to buy it. The case is of particular personal interest because a family member works for a private college that is covered by Christian Brothers, an insurance provider at issue here.

    I think this case underlines that breadth some are trying to go to stay pure -- it reminds me of a bit on "The Daily Show" about "abortion money." At some point, it gets to be too much. Also, it is hypocritical -- groups are quite agreeable to line drawing that separate secular and religious funding that in effect all goes to one institution to avoid possible legal problems regarding funding religious conduct. But, in this area, there is a (artificial -- the reference in one comment to salaries is but an example) different standard applied. The level of Jesuitical hair-splitting gets to be overwhelming.

    At some point, even for groups like these, if you wish to enter the employment marketplace, there are limits. For instance, the brief notes an earlier mandated covered item -- "Congress required coverage of reconstructive surgery after covered mastectomies." There are religious groups that find certain types of reconstructive surgery as against God's will. Consistency would warrant that religious claims can be raised here too. I realize that there is some (imho egregious on some level) selective accommodation going on here (especially if there is any hint of ABORTION, including morning after pills, apparently) selective concern here, but that doesn't make it right.

    I look forward to your upcoming Verdict column.

  11. The draft analogy was the first one I thought of too, but I then abandoned it. The problem is that the Quaker who signs the form isn't opposed to another person getting drafted, the Quaker is opposed to the WAR, and his signing the form doesn't lead the war getting fought any more or less than if he doesn't sign the form. On the other hand, although the plaintiffs in this case make it ostensibly about the signing the form, of course their real objection is to the fact that their employees will have marginally more contraceptive access than otherwise, and which the signing of the form (by assumption) will accomplish. One can argue against the position by saying that the burden is outweighed by the employees' justified interests, but one cannot say that there is nothing there at all.

  12. Thanks TJ. It's not clear to me that the cases are different. It depends on what exactly the objector believes to be the evil and what he counts as participation. A Quaker might think that war is wrong generally but that his obligation is to not participate in war and that, depending on how the signing of the forms is structured, his seeking an exemption does in fact "trigger" the drafting of the next guy on the list, which he may regard as a form of participation. Conversely, as Marty Lederman explained in his posts on Balkinization, it's not clear that in the actual case the signing of the form plays any causal role in leading to employees getting contraception.

    There's a deeper puzzle here as well, which is from whose perspective we judge what counts as participation: the objector's or a sort of "reasonable observer's". I'm going to try to address that puzzle in my column next week. I don't think there's an easy answer to the general problem.

  13. Yes, I agree that if the signing of the form is not causally related to the employees getting contraception, then I don't see what the case is about at all. And I agree there is a deep perspective puzzle at play. In theory, free exercise law tries to say that the content of the religious objection, or what counts as participation, is up to the religious objector. But it can't really carry that all the way to the end since then anybody can say that their religious objection is to signing the form pure and simple.

  14. I too look forward to Mr. Dorf’s forthcoming discussion of participation, and how it is defined in general and how it applies to the specifics of the birth control/family planning mandate of the ACA. But let me say that while I agree that defining participation is an important topic, I doubt that Mr. Dorf or anyone else can really provide a very definitive answer. The issue of defining indirect participation is just too subjective.

    For example, as a Vegan Mr. Dorf refrains from eating dairy products because as he has explained in the past, the production of dairy products results indirectly in the creation of animal offspring which are then slaughtered. And so by eating dairy products he participates in the killing of animals which he finds morally objectionable. Another person, a Vegetarian may have feelings against animal slaughter just as strong as Mr. Dorf, yet may also feel that eating dairy products does not mean participation in the slaughter of the offspring. There is no objective standard to determine which side is right.

    Finally, let me state that I strongly believe that the nuns here are sincere, that they do truly think that contraception is an evil. But I would also reaffirm that I believe they are being used by political opportunists who would seek to damage ACA and by religious zealots who would seek to impose their views on everyone else.

    The deeply religious amongst us ask for accommodation of their beliefs in public life, and they are accommodated and rightly so. Christmas is a national holiday; religious symbols are allowed to be displayed on public property; in areas with a large Jewish population schools are closed on the High Holy Days; at least some forms of organized prayer are allowed at public forums; special tax provisions aid the clergy; religious congregations are given tax exempt status and contributions to them are tax deductible etc, etc.

    But accommodation is a two way street. Those who would seek accommodation must be willing to accommodate to some degree those who do not share their views. The idea that contraception is a manifest evil is not just something that the majority of us do not believe, it is an idea that is totally alien to us and quite frankly an idea that is repugnant and insulting to at least some of us. Those who do believe that contraception is evil are free to refrain from using it, but if they insist on denying those who do not share their views on this particular topic the right to use contraception than they are truly denying others the freedom of religion that they so strongly request for themselves.

  15. I find much of TDPE's last comment very wise. He's also right that my experience as a vegan gives me some sympathy for others (such as the nuns) who hold strong moral views that the rest of the society doesn't share. W/r/t dairy, I actually have two sorts of reasons in play.

    The first is indeed a sense that I would be (and for most of the time that I walked this Earth, I was) complicit in the slaughter of the offspring (and the ill-treatment of the mother cows themselves). I agree that different people will reach different judgments about complicity, and that it is ultimately a matter of judgment about which reasonable people can and do differ.

    But my second reason is more objective. On consequentialist grounds, my consumption of dairy would marginally increase demand for dairy products, and so would lead to increases in what I regard as evils.

    Put differently, what counts as participation may have an irreducibly subjective element, but the causal relation between various acts can often be measured objectively.

    Now back to writing my next post on this endlessly fascinating subject!

  16. Hmmm . . . not sure "endlessly fascinating" quite describes it. "Endless," to be sure -- see:


    The question is why contraception and not some life-sustaining drug like insulin?

    If a third party can choose whether or not to provide contraception coverage why are the good sisters not allowed to do the same?

    It seems logical to assume that the implementation of the contraception mandate, as an element of The Affordable Health Care Act, has, in fact, served as a means to redefine the spirit of the Law in regards to Religious Liberty, and thus change the letter of the Law by limiting the number of persons who have the inherent Right to have their freedom to practice their Faith in public as well as in private, secured and protected.

  18. "The question is why contraception and not some life-sustaining drug like insulin?"

    In what sense? There are other things that are required to be covered. Contraception isn't the only thing. Your link doesn't really help much -- it addresses one possible state interest at best.

    As to limiting the practice, how exactly? Coverage if anything gives people more ability to choose w/o financial barriers.

  19. Our inherent Right to practice our Faith in public as well as in private includes our inherent Right to not condone any act that is a violation of a tenet of our Faith.



  22. Taking part in the public marketplace involves some need to "condone" certain things we don't agree with. If, e.g., a minimum wage was against our faith, since we thought God only wanted us to pay a "just wage" of less than the official minimum, it would not allow employers to pay $5 an hour.

    If this is the Mirror of Justice "Nancy," hello again.

  23. This comment has been removed by the author.

  24. Edit - I miss addressed my previous comment.

    Michael - when you follow-up could please address the issue of the accommodation mandate authority to require the ERISA exempt Christian Brothers Trust to also sign the form and provide it the TPA.

  25. This comment has been removed by the author.

  26. But they are not being gratuitously told by the government to facilitate the provision of contraception by a third party. The government can't simply take over the process and designate a TPA because the government does not know which religious employers have religious objections to providing health insurance covering contraception until those employers come forward. That's why the government asks those employers who do have an objection to sign a SCF--precisely so that they may be excused from participating in the provision of contraception. |


Note: Only a member of this blog may post a comment.