With the Supreme Court ready to review the constitutionality of restrictions on abortion providers in Texas, new research from the Texas Policy Evaluation Project suggests that between 100,000–240,000 Texas women ages 18 to 49 have attempted to terminate a pregnancy on their own (that is, without help from a licensed medical professional). According to the authors, “the populations we found to be most familiar with abortion self-induction are among those that have been most directly affected by the closure of abortion clinics in the state.” As a result, the study predicts, “abortion self-induction will increase as clinic-based care becomes more difficult to access.”
This data reinforces that efforts to ban, restrict, or otherwise interfere with efforts to obtain legal abortion don’t stop abortion—they often push women to obtain abortion by other means that are far more dangerous.
Those consequences, as it turns out, are what led one conservative Supreme Court Justice, Lewis Powell, to support abortion rights. Justice Powell was no right-to-privacy diehard; he infamously cast the deciding vote upholding the Georgia sodomy ban in Bowers v. Hardwick. But when it came to reproductive freedom, Justice Powell joined the majority opinion in Roe v. Wade and continued to support abortion rights while sitting on the Court.
According to Justice Powell’s biographer, an incident from earlier in his career reinforced that if women lacked access to legal abortion, the result would be unsafe, off-the-books procedures:
Although the biggest abortion-related news last week came from the U.S. Supreme Court, a Missouri state senator (turned Attorney General candidate) took the prize for most bizarre.
Senator Kurt Schaefer—chairman of the Missouri Senate’s interim “Committee on the Sanctity of Life”—wrote a stern letter to the University of Missouri; he suggested that state law prohibited a Ph.D student from researching the effects of Missouri’s mandatory 72-hour waiting period for women who want to have an abortion. The law he cited provides, “It shall be unlawful for any public funds to be expended for the purpose of performing or assisting an abortion, not necessary to save the life of the mother, or for the purpose of encouraging or counseling a woman to have an abortion not necessary to save her life.”
This farfetched attempt to censor academic research on the effects of government policy raises a pair of legal issues (and one psychological observation…).
First, Senator Schaefer’s interpretation of the statute is, to put it mildly, a stretch. The student isn’t going to be “performing or assisting an abortion”; she’s going to be studying abortion—more precisely, the 72 hours between when a woman seeks an abortion and is allowed to have an abortion.
Today the Supreme Court granted review in seven challenges to the accommodation offered to those with religious objections to the Affordable Care Act’s contraceptive coverage regulations. I won’t rehash my earlierposts about why I (and seven of eight federal appeals courts) think that these challenges, brought under the Religious Freedom Restoration Act, are bunk. For now, a few observations about the cases and today’s cert grants:
1. These cases involve challenges to a religious accommodation, not the coverage requirement itself. In Burwell v. Hobby Lobby Stores, the Supreme Court said that the government couldn’t enforce the contraceptive coverage regulations against for-profit corporations with religious objections. The Court pointed to a less-restrictive alternative: the accommodation, offered to nonprofit organizations, through which the organization submits a written objection and government arranges for the objector’s insurance company or plan administrator to provide the coverage at no cost to either the objector or its employees. The plaintiffs in these cases are challenging the accommodation itself. By analogy, this is like a conscientious objector challenging the process for opting out of the draft.
2. Oddly enough, Hobby Lobby didn’t officially resolve RFRA challenges to the accommodation. You might think that since the Supreme Court’s decision in Hobby Lobby pointed to the accommodation as the less-restrictive alternative, then the Court must have also made clear that the accommodation itself complied with RFRA. But the majority opinion did not do so. Instead, after pointing to the accommodation as a less-restrictive alternative, the majority said, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”
3. And/But: Justice Kennedy, the deciding vote in Hobby Lobby, suggested more clearly that the accommodation complies with RFRA. Although he joined the majority opinion, Justice Kennedy also wrote separately and appeared to bless the accommodation. Here’s what he said:
“That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”
“Yet neither may that same [free exercise] unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here.”
If Justice Kennedy holds to his view in Hobby Lobby, then the plaintiffs in these cases will probably lose.
4. Although the plaintiffs in these cases are nonprofit organizations, the result will affect employees of for-profit corporations. As instructed by the Supreme Court in Hobby Lobby, the government extended the accommodation to closely held for-profit corporations such as Hobby Lobby. But neither Hobby Lobby nor the other for-profit plaintiffs have said that they will accept the accommodation, and most of them are represented by the same organizations representing the nonprofit challengers to the accommodation. So if the Supreme Court doesn’t uphold the accommodation as applied to nonprofit organizations, employees of objecting for-profit corporations will almost certainly go entirely without contraceptive coverage as well.
5. “[Y]ou are not entitled to your own facts….” Today the Becket Fund, which represents Little Sisters of the Poor and several other plaintiffs, issued a press release entitled “High Court to decide if Government can force nuns to provide contraceptives.” This is false—full stop. Under the accommodation, contraceptives are provided by the employer’s insurance company or plan administrator; employers aren’t paying for the insurance coverage, let alone handing out the insurance coverage, let alone handing out contraceptives themselves. Whether or not you think that the accommodation resolves employers’ religious objections, it is simply not true that—as a matter of fact—objecting nuns are required “to provide contraceptives.” (This is not, I should add, the first time that the Becket Fund has made this claim in a press release.) I will be curious to see whether Becket Fund repeats this claim in its briefs to the Court.
Thomas Jefferson famously said that “[i]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Note what Jefferson did not say: “my neighbor is entitled to pick my pocket and break my leg, so long as the government can refill my pocket and pay for a cast on my leg.”
But the latter formulation seemed to influence last week’s Eighth Circuit ruling that the Religious Freedom Restoration Act (RFRA) bars the government from implementing an accommodation for employers with religious objections to including contraception in their health plans. In my previous post, I explained why the Eighth Circuit reduced RFRA’s substantial-burden requirement to a mere formality, potentially subjecting any and every federal law or regulation to strict scrutiny. Once things get to strict scrutiny, the Eighth Circuit goes even further, suggesting that a federal regulation cannot be sustained if the government could, in theory, provide the benefit or service itself.
The Eighth Circuit first applied this approach to the process by which employers obtain the religious exemption. Under the current rules, an objecting organization need only send a written notice to the government and identify its insurance provider or third-party administrator; the government then works with the insurance provider or third-party administrator to arrange for the employees to receive the contraceptive coverage to which they are entitled by law.
The Eighth Circuit, however, reasoned that there is a less-restrictive alternative to requiring this information, since the government could identify the necessary insurance providers and third-party administrators on its own—well, maybe: “Even if the [third-party administrators] are not known, the government has not shown at this stage of the proceedings that the inconvenience of identifying the [third-party administrators] likely would create an administrative problem of sufficient magnitude to make its entire scheme unworkable.” According to the Eighth Circuit, then, no disclosure requirement can be sustained unless the government can prove that it would be unable to discover the information after its own investigation.
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.
That, I suppose, is one lesson to be learned. Another is that the King lawsuit was so obviously frivolous and nakedly political that even arch-conservative and Affordable Care Act skeptic John Roberts felt constrained to reject it.
This is the third and (I promise) final installment in my skirmish with Josh Blackman over a brief that he and Cato Institute filed in support of Little Sisters of the Poor’s quixotic challenge to regulations requiring them to fill out a form to obtain an exemption from providing contraceptive coverage to its employees. If you haven’t read the previous posts, you can do so here (my first post), here (Josh’s response to me), here (my first reply to Josh), and here (Josh’s second response to me). The basic gist is that, contrary to Cato’s brief, (1) HHS had the authority to implement the nonprofit accommodation, and (2) if HHS didn’t have the authority to issue the accommodation, then Hobby Lobby no longer controls whether the original contraceptive coverage requirement satisfies RFRA, because the Court in Hobby Lobby pointed to the HHS accommodation as the basis for concluding that a less-restrictive alternative exists.
Now, on to Josh’s most recent response.
First, Josh suggests that he’s not actually assuming away the basis of Hobby Lobby, because the HHS nonprofit accommodation could still in theory be enacted by Congress; even if HHS lacked the authority to issue the nonprofit accommodation, he says, it would still constitute a less-restrictive means and thus lead to the same result in Hobby Lobby (such that the Supreme Court can dodge the question in Little Sisters).
But that’s not right either. The premise of Hobby Lobby was that the less-restrictive alternative was existing and on the books; the accommodation was one that “HHS has already devised and implemented.” The Court added: “[W]e need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. 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.” Justice Kennedy, the decisive vote, added that “the mechanism for [accommodating the plaintiffs] is already in place.” (All emphases added by me.)
Josh Blackman has replied to my post criticizing the Cato Institute’s amicus brief (which Josh coauthored) in support of the cert petition in the Little Sisters contraception case. My original post made two arguments: (1) if you take away the nonprofit accommodation, Hobby Lobby no longer supplies a rule of decision, because the presence of the nonprofit accommodation was what led the Court to conclude that RFRA barred the coverage requirement, and (2) if you prevent regulatory agencies from offering reasonable, tailored accommodations to their regulations, the result is bad for religious liberty.
Two brief comment on Josh’s reply.
First, on the question of agency authority to issue religious accommodations, Josh incorrectly suggests that I miss a subtelty in his argument. Josh/Cato say that the Department of Health and Human Services (HHS) has authority to issue religious accommodations, but that it may not decide “which organizations were worthy of the exemption, and which would be burdened by the accommodation.” I address this argument in my original post: the Cato brief assumes that religious accommodations are all-or-nothing, but that is not how the Religious Freedom Restoration Act (RFRA) works. RFRA details when accommodations are available and when they are not (and the Establishment Clause limits accommodations that unduly harm third parties). So an agency (HHS, or otherwise) cannot, as a practical matter, offer accommodations without determining who is eligible for that accommodation and who is not. As I said in my original post, Cato “would force agencies to choose between a bludgeon and no tools at all, even when the agency would need a scalpel to craft religious accommodations consistent with RFRA.”
Fresh off its unsuccessful attempt to gut the Affordable Care Act in King v. Burwell, the Cato Institute is back for more. This time, Cato has filed an amicus brief in support of Supreme Court review in Little Sisters of the Poor Home for the Aged v. Burwell. This is one of the many, many (many) challenges brought under the Religious Freedom Restoration Act (RFRA) by nonprofit organizations to an accommodation, offered by the Department of Health and Human Services (HHS), exempting religious nonprofits from providing contraceptive coverage to their employees. To take advantage of the accommodation, nonprofits need only provide written notice to the government of their objection and the name of their insurance provider or plan administrator. At that point, the government arranges for the nonprofit organization’s insurance company or plan administrator to provide the coverage at no cost to the nonprofit or its employees.
These RFRA challenges to the nonprofit accommodation have been rejected by all seven federal appeals courts to address them. But in this brief backing the challenge by Little Sisters, Cato asks the Supreme Court to dodge the RFRA question entirely, claiming that the case “can be resolved without further engaging in the delicate analysis required by the Religious Freedom Restoration Act.” Instead, Cato makes the following argument: (1) in light of King v. Burwell’s statements about agency deference, HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act, and (2) without a religious accommodation, the contraceptive coverage requirement is unenforceable against nonprofit organizations with religious objections.
Cato seeks—in the name of religious liberty!—to prevent regulatory agencies from granting accommodations to entities with religious objections to regulations, and then argues that the absence of religious accommodation makes the underlying regulations unenforceable against religious objectors. Cato’s curious argument suffers from two serious flaws.
Greg is Senior Litigation Counsel at Americans United for Separation of Church and State. He litigates a range of religious freedom cases at trial on appeal, often bringing First Amendment challenges to government promotion of religion. In addition, he currently represents a Notre Dame student intervening to oppose the university’s challenge to the Affordable Care Act’s contraceptive coverage regulations, and he prepared Americans United’s amicus brief, on behalf of nearly thirty religious organizations, in Burwell v. Hobby Lobby Stores.
Before joining Americans United, Greg spent six years at Covington & Burling, where his practice included trial and appellate litigation, white-collar criminal defense, and First Amendment advice. Read More
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