Contraception Coverage Redux: Supreme Court Excepts Religious Entities from Certification to Exemption from Mandate

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431; Donald Trump v. Pennsylvania, No. 19-454 (July 8, 2020).


Justice Thomas wrote for the Court.  Interim final rules relating to the Affordable Care act of 2010 (“ACA”) require that contraceptives be covered in employer sponsored health care plans notwithstanding that the ACA legislation is silent on this point.   The mandatory preventive care provisions of the ACA do not define what preventive care must be covered, leaving it to the Department of Health and Human Services (HHS) to provide specifics.

The Departments of Health and Human Services, Labor, and the Treasury have promulgated exceptions from the contraceptive mandate.   HHS excused itself from the Administrative Procedures Act’s (“APA”) notice and comment provisions, notwithstanding concerns expressed by religious employers.  HHS crafted an exemption for churches and their integrated associates.  

Several years passed in crafting refinements and self-certification for exemptions.  Insurers could provide contraceptive benefits separately to employees of self-certifying exempt entities. Religious entities such as the plaintiffs here objected to this scheme as involving unwanted participation in the contraceptive mandate.  

The Little Sisters of the Poor Saints Peter and Paul Home (“Little Sisters”) argued — but courts disagreed — that exemption self-certification presented just the kind of undue burden on the free exercise of religion that the Religious Freedom Restoration Act (“RFRA”) was intended to protect.  Petitions for certiorari from several religious entities were remanded when parties appeared to agree that arrangements for separate provision of contraception could be fashioned so as to not require action by the religious groups, and that this would be a satisfactory result.

At the same time, other challenges to the contraceptive mandate were mounted.  Private employer Hobby Lobby Stores prevailed in an as-applied RFRA challenge, causing HHS to redraft its rules. 

HHS was initially unable to draft measures sufficient to satisfy religious objections while fulfilling the contraceptive mandate’s promise to employees.  After several years, HHS promulgated the rules in issue in this case, which expanded the definition of exempt employers, and which relieved employers from participation in the accommodation process, although that process remained available. 

A federal court issued a national injunction against HHS on the date the rules were to have taken effect.  Subsequent to Third Circuit review, the Supreme Court granted certiorari.

The Supreme Court, engaging in textual analysis, observed that the ACA conferred unbridled discretion on HHS to regulate required, or excluded, health care for women without defining what that care would include or exclude.  Where Congress could have limited this unfettered discretion but did not do so, the Supreme Court would not supply new additions to the statute.  Where no party raised an overbreadth challenge to the delegation, the Supreme Court would not disturb it.

Because the Court concluded that HHS’ discretion was conferred by Congress, the Court did not address whether RFRA compelled or authorized HHS’ action, but the Court noted that it was not improper for HHS to consider RFRA in fashioning regulations, particularly in light of the proceedings relating to to the contraceptive mandate. 

The Court concluded that HHS met the substance of notice requirements and had accepted comments.  The Court refused to require “open mindedness” of HHS, finding no basis for such a requirement in the APA.

Justice Alito, with Justice Gorsuch, concurred.  Justice Alito would extend the Court’s opinion to find that RFRA requires the exemption, thereby precluding arbitrary and capricious challenges on remand.  Justice Alito urged that the Court find finality in its present decision rather than requiring another round of remand. 

HHS’ Health Resources and Services Administration (HRSA) was given responsibility under ACA to determine what preventive services should be made available.  HRSA determined that contraception should be available, at first exempting only churches but later, following objections and litigation before the Supreme Court, expanding that exception and modifying procedures.

Justice Alito opined that RFRA applies to all government activity and as such, HRSA had to administer the contraceptive mandate in accordance with RFRA.  This is particularly so because the Supreme Court held in Hobby Lobby that the contraceptive mandate may substantially burden religion.  

Justice Alito did not think that Congress has fashioned contraceptive coverage in a way that suggests that Congress considered contraception to be a compelling interest, particularly as the question whether it ought to be provided at all was delegated to the administrative agency.  So many people and situations are exempted that it is difficult to perceive that a compelling interest in the provision of contraceptives exists.  The circular administrative exceptions themselves indicate that the mandate did not concern a compelling interest. 

The issue is whether there is a compelling need for coverage, not convenience.  Even if there were a compelling interest, the least restrictive means test must be satisfied.  Congress could create cost-free contraception if it wished without burdening the consciences of religious entities.  

Although the government must legislate using the least restrictive means to advance compelling interests, the government need not adhere to least restrictive means principles in creating accommodations.  The woman who works for an entity that exempts itself from the contraceptive mandate is not burdened by the employer’s exemption: “she is simply not the beneficiary of something that federal law does not provide.”  (Concurrence, Slip Op. at 18.)

Justice Kagan, with Justice Breyer, concurred in the judgment.  Justice Kagan agreed with the idea of authority to create exemptions but questioned whether reasoned decision making is in place, and notes that the lower courts can address this.  The conclusion that authority was present made it unnecessary to address whether any determination was arbitrary and capricious and that needs to be done.  Reasoned decision making is absent where the scope of the exemption does not fit the problem to be addressed.  The revised rule exempts those who might have no objection to the self-certification accommodation, and fails to protect employees’ access to contraception.  The extension of the exemption to publicly traded entities is questionable as it is difficult to locate conscience interests in such companies.  Why more in addition to religious exemptions were included is not clear, and RFRA does not cover “moral” objections. 

Justice Ginsburg, joined by Justice Sotomayor, dissented.  Justice Ginsburg laments what she perceives to be the Court’s abandonment of balancing beliefs so that no interests are overwhelmed, and fears that the Court has demolished the protections that the Women’s Health Amendment to the ACA, leaving “working women to fend for themselves…” (Dissent, Slip Op. at 2.)

Neither the Free Exercise Clause or FRFA required this result.  The Court has abandoned the accommodations intended to ensure that all interests and objections could be addressed.  Unlike the majority, Justice Ginsburg found no authorization for a blanket exemption in the ACA.  Where heretofore it was agreed that any religious exemption to the contraception mandate would preserve access to contraception, the exemption the Court now embraces places an undue burden on women.  Directing women to seek assistance from available government programs will only further cripple already overburdened programs.  

This process would force women to abandon known caregivers and if forced to pay out of pocket would likely cause women to pay for more expensive coverages.

Even if the self-certification process is sincerely believed to be unduly burdensome, that is not true as a matter of fact or law, as the government need not conduct itself in a way that comports with religious views.  Self-certification relieves religious employers of their objections to obligations and transfers the obligation to the insurer:  this both accommodates the religious employer and facilitates the government’s interest in women’s health care.

The obligation to provide contraception arises from the ACA, not from submission of self-certification of exemption based on religious objection.  A blanket exemption is nowhere consistent with any statute or regulation.  

Little Sisters of the Poor v. Pennsylvania No. 19-431 and Trump v. Pennsylvania No. 19-454 July 8, 2020

 

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)