Zubik v. Burwell, Part 6: The Accommodation is the Least-Restrictive Option

Photo: Demonstration
Flickr/Creative Commons—Joe Brusky

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3, Part 4, and Part 5 of this series)

The plaintiffs in Zubik v. Burwell and its siblings seek to block their students and employees from receiving contraceptive coverage from third-party insurance companies and plan administrators. Even though the plaintiffs need neither provide nor pay for contraceptive coverage, they argue that the government can and must adopt one or more purportedly less-restrictive alternatives, including (1) providing contraceptives or contraceptive-specific coverage to women directly; (2) offering grants to other entities that provide contraceptives; (3) offering tax credits or tax deductions to women required to pay for contraceptives; or (4) expanding eligibility for programs that provide contraceptives to low-income women. (The University of Notre Dame, whose petition for Supreme Court review is pending, has also argued that it could provide coverage for natural family planning; the Seventh Circuit correctly noted that natural family planning “is not contraception at all.”)

These proposed alternatives would not achieve the government’s interest as effectively as the accommodation; they would, instead, impose financial or logistical barriers on women, thwarting their seamless access to contraceptives and demoting contraceptives to junior-varsity care. Women would be forced to identify and register for yet another new program, perhaps see a different doctor for contraception-related care, and possibly pay out of pocket. (For more on the problems with the proposed alternatives, see my organization’s brief on behalf of 240 students, faculty, and staff at religiously affiliated universities, as well as the brief of health law policy experts prepared by Hogan Lovells.)

By requiring women to jump through logistical hoops and incur additonal costs, the proposed alternatives would reduce access to and use of contraceptives. Studies show that even minor barriers can dramatically reduce contraceptive access: Read More

Zubik v. Burwell, Part 5: These Exceptions are Unexceptional

Photo: Bronze IUD
Flickr/Creative Commons—Sarah Mirk

By Gregory M. Lipper

(Read Part 1, Part 2, Part 3Part 4, and Part 6 of this series)

Despite birth control’s considerable benefits, the challengers in Zubik v. Burwell argue that the government lacks a compelling interest in applying the contraceptive accommodation to religious objectors. No matter how important it is to ensure that women have access to contraceptive coverage, the challengers say, the presence of other exceptions to the coverage requirements makes the interest in providing contraceptive coverage less than compelling. If contraceptive coverage were truly important, the argument goes, then there wouldn’t be any exceptions at all.

This argument proves too much—way too much. Almost all laws have exceptions. As the government explains in its brief to the Supreme Court, “Numerous organizations are not required to pay taxes; half the country’s draft-age population is exempt from registering for the draft; and Title VII does not apply to millions of employers with fewer than 15 employees, see 42 U.S.C. 2000e(b). Yet no one would suggest that raising tax revenue, raising an army, and combating employment discrimination are not compelling interests.” Indeed, despite Title VII’s exemption for small employers, the Supreme Court in Hobby Lobby reiterated that “[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race…”

Despite these examples, the plaintiffs claim that the government’s interest in contraceptive coverage is undermined by three exceptions: (1) employers with fewer than fifty employees need not provide health insurance at all; (2) houses of worship are exempted from the contraceptive-coverage requirement; and (3) grandfathered employers are exempted from some coverage requirements, including the one pertaining to contraceptives. But none of these make the government’s interest any less compelling.

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Zubik v. Burwell, Part 4: The Compelling Interest in Contraceptive Coverage

Photo: Birth Control Rally
Flickr/Creative Commons—Women’s eNews

By Gregory M. Lipper

(Read Part 1, Part 2Part 3Part 5, and Part 6 of this series.)

If the Supreme Court were to conclude that the plantiffs in Zubik v. Burwell plaintiffs have established a substantial burden on religious exercise, the case is not over. Under the Religious Freedom Restoration Act, the government may enforce even a law that substantially burdens religious exercise if that law advances a compelling governmental interest and is the least-restrictive means of advancing that interest. In the 2014 Hobby Lobby decision, the Supreme Court majority assumed, without deciding, that the coverage regulations advanced a compelling interest. And in his concurring opinion, Justice Kennedy went further: It was “important to confirm,” he wrote, that “a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”

The government’s interest in ensuring that women have contraceptive coverage is compelling indeed. Access to contraception has many benefits—some of them obvious, others less so. And these benefits explain why the CDC has listed family planning as one of the 10 most important public-health advances of the 20th century.

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Zubik v. Burwell, Part 3: Birth Control Is Not Abortion

Photo: Plan B
Flickr/Creative Commons—Irina Ivanova

By Gregory M. Lipper

(Read Part 1Part 2Part 4Part 5, and Part 6 of this series)

Pay attention to the Supreme Court’s upcoming contraceptive-coverage cases and you’ll hear horror stories from religious-right groups about an “abortion-pill mandate” (here’s ADF and ACLJ). These groups know that contraception is popular and that, to most people, campaigns to block birth control would seem Jurassic. With abortion more controversial, claims about compulsory distribution of “abortion pills” sound much scarier. Indeed, the plaintiffs’ briefs in Zubik claim that the accommodation would make the plaintiffs complicit in the provision of coverage for, among other things, “abortifacients.”

But neither surgical abortion nor the abortion pill (known as RU–486) are part of the Affordable Care Act’s coverage requirements. So why are courts, websites, and inboxes awash in complaints about the termination of pregnancies?

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Zubik v. Burwell, Part 2: The Religious Objectors Who Cried Wolf

Photo: wolf
Flickr/Creative Commons—Luke Jones

By Gregory M. Lipper

(Read Part 1, Part 3Part 4Part 5, and Part 6 of this series)

Yesterday, I evaluated the unprecedented arguments, by the plaintiffs in Zubik v. Burwell and its companion cases, that the process for seeking a religious exemption from the contraceptive-coverage regulations itself burdened the objectors’ religious exericse. Today, I move to a more basic question: Are these idiosyncratic claims sincere?

Like all free-exercise provisions, the Religious Freedom Restoration Act protects only sincere religious beliefs; it does not permit challengers to cloak ideological or financial objections in religious garb. Insincerity can reveal itself in several ways: prior inconsistent conduct, claims that are suspiciously timed, or outright admissions of an ulterior motive. The RFRA challenges to the contraceptive coverage regulations—and especially the accommodation—have presented several of these elements. But the government, in resisting these RFRA challenges, has not challenged the plaintiffs’ sincerity.

That said, there are several reasons to doubt the sincerity of several plaintiffs’ claims, and to see these lawsuits as an exercise in politics arising from broader conservative and religious opposition to the Obama administration’s positions on issues such as healthcare reform, stem cell research, abortion, and marriage equality. This apparent insincerity provides yet another reason to reject the latest round of RFRA challenges to the contraceptive accommodation.

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Zubik v. Burwell, Part 1: Why Paperwork Does Not Burden Religious Exercise

Photo: IUD
Flickr/Creative Commons—mara

By Gregory M. Lipper

(Read Part 2, Part 3Part 4Part 5, and Part 6 of this series)

Birth control is back at the high court. On March 23, the Supreme Court will hear oral argument in Zubik v. Burwell and its six companion cases. Despite what you may have heard, religious objectors—whether they are nuns or Notre Dame—are not required to distribute birth control. On the contrary, an accommodation enables religious objectors to opt out of offering contraceptive coverage to their employees; once the objectors request the accommodation, the government arranges for the objectors’ insurance companies or plan administrators to provide the coverage—at no cost to either the objectors or their students and employees. But does this accommodation itself violate objectors’ free-exercise rights under the Religious Freedom Restoration Act?

No, say eight of the nine federal appeals courts to consider the question. These courts have rejected the argument that by opting out of providing contraceptive coverage, objectors’ religious exercise is substantially burdened because the government arranges for a third party to pick up the slack. Read More

10 Observations About the Supreme Court Argument in Whole Woman’s Health

Supreme Court
Flickr Creative Commons—Andrew Raff

By Gregory M. Lipper

On Wednesday, the Supreme Court heard oral argument in Whole Woman’s Health v. Hellerstedt, a constitutional challenge to a pair of Texas restrictions on abortion providers. The first provision requires doctors who perform abortions to have admitting privileges from a hospital no more than 30 miles from their clinic; for a variety of reasons, these privileges are very difficult for abortion providers to obtain. The second provision requires abortion clinics to meet the rigorous—and often prohibitively expensive—requirements governing ambulatory surgical centers (this was referred to as the ASC law). If allowed to take effect, these requirements would cause 3/4 of Texas abortion clinics to close and leave just 10 clinics to serve over 5 million women.

The requirements were struck down by the district court, reinstated by the Fifth Circuit, and temporarily blocked by the Supreme Court, which is now hearing the merits of the challenge.

Based on my review of the transcript, here are ten observations about the argument:

1. Justice Ginsburg opened the argument with a procedural curveball.

With the law’s challengers going first, most people presumably expected the argument to start with sharp questioning from, say, Justice Alito. Instead, the Center for Reproductive Rights’s Stephanie Toti got just two sentences out before she was interrupted by Justice Ginsburg. The former civil-procedure professor wanted to know about claim preclusion: in particular, whether the challenges, in this case, to the admitting-privileges requirement were foreclosed by the plaintiffs’ unsuccesful facial challenge, in an earlier case, to those same requirements. This and other procedural inquiries dominated Toti’s argument.

2. All roads lead to the record.

Several of the conservative Justices interrogated Toti about the proof that the law’s requirements would cause clinics to close. Toti provided some infromation about how laws would affect clinics, but also repeatedly alluded to more detailed information that she would supply during her rebuttal. This approach may have prolonged the questioning on this point:

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Abortion Is Way More Common Than Most Voters Think

By Gregory M. Lipper

A new Vox survey reveals that a majority of registered voters underestimate the rate of abortion, and that the abortion rate is most likely to be understimated by men, college graduates, and those with higher salaries:

More educated and higher-income Americans are especially likely to believe that abortion is rare.

For example, 54 percent of Americans without a college degree underestimate abortion rates, compared with 70 percent of those with graduate degrees. And 51 percent of those earning less than $50,000 underestimate the frequency of abortion, compared with 69 percent of those earning more than $175,000.

The split happens when you look at gender, too. Women would near certainly have more experience with abortion than men. Our poll shows that 67 percent of men underestimate the frequency of abortion, compared with 57 percent of women.

Fortunately for those who support abortion rights, no Supreme Court Justices are wealthy, well-educated men…

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

Happy New Year: From “Weltschmerz” to Pharmaceutical Innovation

By Timo Minssen

Dear readers and colleagues,

I would like to take this opportunity to wish you all a very happy, healthy and peaceful year 2016.

Reaching the end of 2015, I cannot stop thinking about the year that has passed. Being a native German, living in Sweden and commuting every week over the bridge to Copenhagen in Denmark – most recently with thousands of terrified refugees and border controls on the way back to Sweden – this year has left me with much astonishment and concern about the state of the European Union and our global situation. It appears to me as if the EU and other global leaders have focused far too much on tiny technicalities, while leaving the bigger issues untouched and disregarding crucial lessons of history. There are so many things that we must learn from 2015’s terrible events and alarming decisions, but also from the hope-giving agreements, incidents and initiatives. For me one of the most important take-aways is that everything is connected and that sustainable, realistic solutions not only require immediate actions. In my view, we need to think about long-term strategies both in more detail and from a bigger perspective. Due to the complexity of our most pressing problems this is a colossal task. It demands more knowledge, better communications, more collaboration and a more effective coordination of  the considerable skills and different competences that are already out there.

Returning to the actual topic of this blog, it becomes evident that this is also very much true for the health sector and the bio-pharmaceutical area. Not only the Ebola outbreakglobal health crises, IPR debates, dreadful business models and controversial FTA negotiations, but also scientific break troughs, new therapies, legislative action and novel US and EU approaches demonstrate very clearly how this area is left with many challenges and opportunities. The recently approved US 21st Century Cures Act and the new EU Clinical Trials Regulation, for example, show how legislative activities pursuing laudable goals might lead to unwanted adverse effects if they are not carefully enough considered. Read More

Linda Greenhouse Wins Headline of the Year

By Gregory M. Lipper

“Sex After 50 at the Supreme Court” is the title of today’s Turkey Day column by the peerless Linda Greenhouse. She takes a saucy look at upcoming Supreme Court cases on contraception and abortion and the role of religion in motivating restrictions on reproductive rights and health.

Here’s a taste:

But here’s what’s the same: sex, women and religion.

Among the achievements of the Griswold decision was the separation, as a constitutional matter, of sex from procreation. Although the court viewed the issue through the lens of the privacy of the marital bedroom, that notion of liberty, once established, couldn’t remain confined to husband and wife — nor, eventually, to man and woman.

As we learned from the arguments and dissents in last June’s same-sex marriage decision, the separation of marriage — let along sex — from procreation remains deeply unsettling to segments of the religiously conservative population.

Gobble up the whole column here. Happy Thanksgiving!

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