I Concur with the Dissent (or, More on Little Sisters)

On September 3, the 10th Circuit declined to rehear en banc several challenges to the contraceptives coverage mandate filed by non-profit organizations, including Little Sisters of the Poor. As SCOTUSBlog explains, these organizations had not themselves asked for en banc review, having already moved on to SCOTUS, but the judges have the option of calling for a vote themselves, which one or more of them must have done.  The vote came down 7-5 in favor of refusal, with the dissenting judges (i.e., those who wanted en banc review) issuing an explanation of their position.  On this issue, I concur with the dissent.  But I still don’t think the objecting non-profits should be off the hook.

When it comes to the contraceptives coverage mandate, non-profits, and now certain for-profits, are accommodated such that they may be relieved of the responsibility to contract, arrange, pay, or refer for contraceptives coverage if they notify the government or their health insurer of their objection to doing so, such that their insurer (or third party administrator of self-insured plans) can provide free contraceptives to their employees, at no cost to and without the involvement of the employer (all further explained here by Greg Lipper).  However, many organizations continue to argue that the accommodation fails to relieve them of complicity in providing contraceptives against their religious beliefs.  They want flat out exemption from the mandate.

What these organizations must demonstrate to win under the Religious Freedom Restoration Act is that the accommodation continues to substantially burden their religious exercise, but fails to further a compelling government interest in the least restrictive manner.  However, every Circuit Court of Appeals decision since the Supreme Court’s Hobby Lobby ruling has upheld the accommodation on the grounds that it does not even substantially burden religious belief, dodging the questions of compelling government interest and available alternatives.

The dissenters in the 10th Circuit point out the dangers of this approach.  Courts can evaluate the sincerity of religious beliefs, but not their validity.  However, when courts evaluating the accommodation determine that it is sufficient to eliminate the objecting organizations’ complicity in behavior they find problematic, they are basically substituting their views regarding complicity for those of the religious believers.  This is not to say that we just have to take substantial burden as a given whenever anyone says their religious beliefs are violated, but the consequences for noncompliance in this context are pretty steep.  So I think the dissenting judges here are right to suggest that the grounds on which challenges to the accommodation have lost to date are questionable, at best.

That said, I think the accommodation nonetheless satisfies the RFRA test because it furthers the government’s compelling interest in making contraceptives easily accessible to women (at least in theory), such that they may plan their families, avoid health issues, and participate equally with men in social and economic life.  Moreover, it achieves this goal in the least restrictive way possible – short of single-payer, government-run health care, which we obviously don’t have in this country, how else can we guarantee access?

So give them substantial burden and I think the objectors to the accommodation still lose, but I’d like to see us at least acknowledge the real complicity that they feel, and that it is their prerogative to define.

[H/T Greg Curfman for pointing me to the dissent, which I missed while on vacation!]

Holly Fernandez Lynch

Holly Fernandez Lynch, JD, MBE, is the John Russell Dickson, MD Presidential Assistant Professor of Medical Ethics in the Department of Medical Ethics and Health Policy at Penn’s Perelman School of Medicine. She is also the Assistant Faculty Director of Online Education, helping to lead the university’s first online master’s degree, the Master of Health Care Innovation, and other online offerings.

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