On Agency Accommodations and Least Restrictive Alternatives

By Nadia N. Sawicki

Did HHS shoot itself in the foot by providing an accommodation to religious non-profits?

In holding that the contraceptive mandate imposed by HHS on Hobby Lobby and Conestoga Wood was not the “least restrictive alternative” for providing no-cost contraceptive coverage to women, the Supreme Court pointed to the accommodation HHS recently provided to religiously-affiliated non-profit corporations. Under the accommodation, “eligible organizations” such as religiously-affiliated hospitals and universities can avoid funding insurance coverage for contraceptives if they certify that they have a religious objection to providing such coverage. In such cases, the eligible organization’s insurance issuer must exclude contraception from the organization’s group health insurance plan, and instead provide a separate issuer-funded contraceptive plan directly to employees. Given that such an accommodation is already in place for some employers, the Supreme Court noted, “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”

One obvious problem with the Court’s assertion, noted in Justice Ginsburg’s dissent, is that the Court expressly declined to determine whether such an accommodation would in fact be permissible under RFRA. Given the challenges to the accommodation-by-certification requirement already brought by organizations like Little Sisters of the Poor, it is far from clear that the current composition of the Supreme Court would uphold this requirement if faced with a direct challenge.

A second, perhaps less obvious, concern about the Court’s proposal that the eligible employer accommodation be extended to for-profit corporations is that HHS may now regret providing it – and as a result, HHS may refrain from making similar accommodations in the future, which would be a significant loss to defenders of religious freedom.

There is a clear difference between agency accommodations that are crafted as political responses to significant and legitimate public concern about religious freedom and those accommodations that are constitutionally required by the First Amendment or statutorily required by RFRA. For example, consider religious exemptions to mandatory vaccination laws – many states offer such exemptions by way of statute, but no court has held that they are constitutionally required under the First Amendment. In other words, providing such exemptions may be a smart political move, but it may not be legally required to protect the constitutional rights granted under the First Amendment. Another very simplified analogy might be to the law of products liability, where courts have held that a design improvement made to increase safety cannot be used in court to demonstrate the manufacturer’s liability for injury caused by the product prior to the design change.

If the HHS accommodation for eligible employers were a similarly politically-driven but not clearly legally-required accommodation (though I take no position on whether this is in fact the case), then the Supreme Court’s reliance on this accommodation as evidence of a possible “least restrictive alternative” may be problematic. Had HHS not provided the eligible organization accommodation, RFRA and First Amendment challenges surely would have been raised (and may well have been successful). But the Court would not then have had a ready alternative to point to in support of its finding that HHS failed to provide a less restrictive alternative. The burden, then, would presumably be on the parties to identify such an alternative – and as noted by Justice Ginsburg in her dissent, the accommodation proposed by the court was “never suggested in the parties’ presentations.” Indeed, neither Hobby Lobby nor HHS had any opportunity to consider and respond to the proposal that HHS offer the eligible organization accommodation to for-profit corporations.

If HHS now regrets handing the Supreme Court a ready-made solution to the problem of the least restrictive alternative, in effect sealing its fate as a losing party, it may be more hesitant to craft such exceptions in the future. And this would be unfortunate. Where an accommodation can be provided to religious believers without negatively impacting the rights and liberties of third parties, it makes good political and social sense to do so, even if such accommodations are not strictly required as a matter of law. When done right, such a move can demonstrate respect for the diversity of belief (and non-belief) in the United States while still supporting other valuable and uncontested public goods. But if an agency’s voluntary accommodation can now be used by courts as an easy way of resolving RFRA claims in support of religious objectors, these important incentives may be outweighed by agency concerns about their impact on future litigation.

Nadia Sawicki

Nadia Sawicki

Nadia N. Sawicki is a Georgia Reithal Professor of Law at Loyola University Chicago, and Academic Director of Loyola’s Beazley Institute for Health Law and Policy. Her research focuses on patient decision-making and the informed consent process, particularly in the areas of end-of-life and reproductive care. Her work has been published in a variety of peer-reviewed journals - including the New England Journal of Medicine; Law & Policy; the Journal of Law, Medicine & Ethics; the American Medical Association Journal of Ethics; the Journal of Clinical Ethics; the American Journal of Bioethics; and the Journal of Legal Medicine – as well as in many academic legal journals. She has previously served as a member of the American Bar Association’s Special Committee on Bioethics and the Law, and was the co-chair of the American Society for Bioethics and the Humanities’ Law Affinity Group. Prof. Sawicki received her J.D. from University of Pennsylvania Law School, and her Masters in Bioethics from University of Pennsylvania School of Medicine. She is a graduate of Brown University, with a concentration in biomedical ethics. Prior to joining the Loyola faculty, Prof. Sawicki held the inaugural George Sharswood Fellowship at the University of Pennsylvania Law School, served as a lecturer in History and Sociology of Science at the University of Pennsylvania's School of Arts and Sciences, practiced law with Wolf, Block, Schorr & Solis-Cohen, and clerked for the Honorable J. Curtis Joyner of the U.S. District Court for the Eastern District of Pennsylvania.

2 thoughts to “On Agency Accommodations and Least Restrictive Alternatives”

  1. Totally agree, Nadia! We made this disconcerting point in our just-out NEJM Perspective, but didn’t have enough space to really flesh it out. Thanks for doing so.

  2. Totally agree, Nadia! We made this disconcerting point in our just-out NEJM Perspective, but didn’t have enough space to really flesh it out. Thanks for doing so.

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