(Final) Reply to Author of Cato Brief in Little Sisters Contraception Case

Flickr Creative Commons/Charlie Marshall

By Gregory M. Lipper

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.)

This wasn’t a hypothetical accommodation that Congress would have had to enact later; this was something that was already on the books. Hobby Lobby’s less-restrictive alternative holding, then, depended on the existence of the HHS nonprofit accommodation—right now—not on its hypothetical enactment by Congress later on. Take away the already-implemented HHS accommodation, and you take away the less-restrictive alternative holding of Hobby Lobby. Contrary to Cato’s argument, there is no magical way for the Court to dodge the substantive RFRA question in Little Sisters or the implications of stripping contraceptive coverage from thousands of women protected by the accommodation.

Second, Josh says that the interim order in Wheaton College is a binding interpretation of Hobby Lobby (it is not) that took up the question he raises now (it did not) and answered it in the way he wanted (it most definitely did not).

Josh says that his argument is based “on the Hobby Lobby majority as ratified by six Justices in Wheaton College.” But Wheaton College didn’t “ratify” anything; the Wheaton College order said that “this order should not be construed as an expression of the Court’s views on the merits.”

To the extent that Wheaton College did address a question, it wasn’t whether Hobby Lobby’s less-restrictive alternative analysis relied on the existence of the nonprofit accommodation (it obviously did); it was whether the accommodation itself complied with RFRA. In any event, the Wheaton College order required nonprofits to notify the government of their objection, and then said that “[n]othing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.” That sounds a lot like the most recent HHS accommodation—the objecting nonprofit sends a notice, HHS arranges for coverage after receiving the notice. If the Supreme Court was saying anything, it was that HHS did have the authority to issue the nonprofit accommodation, and that Hobby Lobby depended on this assumption.

Finally, let me reiterate what I think is the biggest problem with Josh’s posts and Cato’s brief. As I mentioned in my original post, there is a common thread running through Josh and Cato’s argument in King v. Burwell and its argument in this case. Josh and Cato posit that neither RFRA nor the Affordable Care Act should be read to give agencies the authority to tailor reasonable religious accommodations to regulations that they promulgate pursuant to the Affordable Care Act and bring them into compliance with RFRA: “in the absence of any hint that Congress delegated the interpretive authority needed to afford some religious organizations an exemption, but arbitrarily decide others get the accommodation, HHS is limited what it can do to comply with RFRA.”

But Josh and Cato never answer the basic question: why would Congress want to strip agencies of the power to tailor reasonable accommodations from regulations that impose substantial burdens on religious exercise, and to do so in a manner that complies with RFRA? If Congress cared about agencies’ ability to implement statutes through regulations and provide for reasonable accommodations for religious objectors, then Congress would have wanted agencies to have the authority to—wait for it—implement statutes through regulations and provide for reasonable accommodations for religious objectors. Indeed, RFRA applies across the board “unless such law explicitly excludes such application by reference to [RFRA].” If RFRA applies in the background to agency regulations, the corollary is that agencies have the background authority to ensure that their regulations comply with RFRA.

If you think Congress wanted to deprive agencies of the ability to offer reasonable religious accommodations, or to give agencies only blunt authority that makes it nearly impossible for them to actually regulate, then you have to assume that Congress would have wanted to make it as difficult as possible for agencies to do their jobs. That may be Cato’s goal, but it’s not a goal that the Supreme Court should lightly impute to Congress.

That also happens to be the ultimate lesson of King v. Burwell: we interpret statutes in a manner that advances statutory goals, not in a way that undermines them. He’ll never be forgiven for it in some circles, but the Chief Justice could not have been clearer when writing for the Court in King: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” With RFRA added to the mix, Cato still needs to learn that lesson.

Greg Lipper is Senior Litigation Counsel at Americans United for Separation of Church and State. You can follow him on Twitter at @theglipper.

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