Sunday, July 6, 2014

Guest Post: Daniel L. Real on Wheaton College v. Burwell

Today's post is a guest piece by Daniel L. Real, a career judicial staff attorney for the Nebraska Court of Appeals since 1995 and a legal research and writing professor at Creighton University since 1999. Dan's prior work is on the issues of appellate practice and judicial independence. He shares his thoughts with us on the U.S. Supreme Court's recent decision in Wheaton College v. Burwell:

There has been plenty of quick commentary on the U.S. Supreme Court's decision from last week in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). You can form your own opinions on whether the decision was correct, where you stand on the subjects of the Affordable Care Act (ACA) and religious freedom.  I don't have an interest in discussing those specific topics here.  Something related, however, did catch my eye this weekend.

I suspect that there will be quite a bit of discussion in the next week or so about the Supreme Court's last-minute ruling on the application for injunction filed by Wheaton College in Wheaton College v. Burwell, but for now there has not been a particularly wide-ranging discussion of it.  Perhaps the lateness of the ruling on July 3, coupled with the July 4 holiday, caught some off guard.  Nonetheless, it was a noteworthy ruling that is worth looking at and considering.

In Hobby Lobby, the Court held that certain closely-held corporations could assert the same religious freedoms as individuals and addressed whether certain provisions of the ACA requiring employers to provide health-insurance coverage for specific methods of contraception that violated the sincerely held religious beliefs of the companies' owners were in violation of the Religious Freedom Restoration Act (RFRA). The Court held ACA provisions concerning four specific contraception methods imposed a substantial burden on the religious freedom of the closely-held corporations. Under the RFRA, such a substantial burden would be permissible only if the government could show a compelling state interest and if the government's action constitutes the least restrictive means of serving that compelling interest.

The Court assumed, without specifically deciding, that the government had a compelling interest in guaranteeing cost-free access to the particular contraceptive methods.  The Court held, however, in a 5-4 decision, that the challenged ACA provisions did not constitute the least restrictive means of serving that interest and held that the ACA provisions violated the RFRA with respect to the closely-held corporations.

In explaining why the ACA provisions did not constitute the least restrictive means, the Court had to make a decision that often faces appellate courts and had to discern how much explanation to provide to support the Court's conclusion.  In writing for the majority, Justice Alito noted at least two "less restrictive" ways for the government to achieve its compelling ends.  First, the Court noted that "[t]he most straightforward way . . . would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections." Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____, *41 (2014).

After analyzing potential objections to the theoretically viable creation of a new government-funded program to provide the contraceptives, however, the Court concluded that it "need not rely on the option" to conclude that the ACA provisions were not the least restrictive alternative. The Court noted that "[Health and Human Services (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." Id. at *43. The Court noted that "HHS has already established an accommodation for nonprofit organizations with religious objections," wherein the organization can self-certify that it opposes providing insurance coverage for the particular contraceptive services and require the organization’s insurance issuer or third-party administrator to provide coverage for the contraceptive services without any cost-sharing by the objecting organization. Id.

The Court specifically cautioned that it was not deciding whether this option "complies with RFRA for purposes of all religious claims," but very specifically held that "[a]t a minimum . . . it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion." Id. at *44. In footnote 40, the Court even responded to the dissenting opinion's characterization of the Court as being noncommittal about the viability of this alternative and the Court commented that "[T]he less restrictive approach we describe accommodates the religious beliefs asserted in these cases." Id.

There has been much discussion about the Hobby Lobby decision, its implications, whether it is the start to a "slippery slope," how it might impact the ACA as a whole.  But what has potentially gone largely unnoticed to this point is what happened just three days later, when the Court issued its ruling on Wheaton College's application for injunction in Wheaton College v. Burwell, 573 U.S. ___ (2014).

The "less-restrictive" alternative described by the Court in Hobby Lobby allows groups with a religious objection to the ACA mandates to self-certify a religious objection and pass the obligation to pay for coverage for the contraceptives to the insurer or third-party administrator. To obtain this accommodation, however, groups are required to fill out a federal form to register their objections. As the Washington Post noted in a July 3 article (http://www.washingtonpost.com/politics/courts_law/2014/07/03/622f7b12-02f8-11e4-8572-4b1b969b6322_story.html?hpid=z1), a number of colleges, including Wheaton, objected to the requirement to complete the form. The colleges alleged that the act of signing the form and authorizing third parties to provide the contraceptive coverage made the colleges complicit in the action of providing the contraceptives and that even that offended the college's religious beliefs.

In its ruling on Wheaton's application for injunction, the Court held that Wheaton need not fill out the previously required form and, instead, need only notify the government "that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds." Wheaton v. Burwell, 573 U.S. ___, *2 (2014). The Court noted that "[n]othing . . . 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." Id.

Justice Sotomayor authored a dissent to this ruling, in which Justices Ginsburg and Kagan joined.  The dissent noted that earlier in the week the Court had described the very accommodation that Wheaton was challenging as being an alternative that was less-restrictive than the ACA provisions in achieving the government's compelling interests.  The dissent characterized the ruling in Wheaton as "evinc[ing] disregard for even the newest of [the] Court's precedents and undermin[ing] confidence in the institution." Id. at *4.

The apparent conflict between what the Court suggested in Hobby Lobby—that the accommodation was a legitimate and permissible means for the government to achieve its compelling interests that demonstrated that the ACA provisions were not the least-restrictive alternative—and what the Court suggested three days later in Wheaton—that the accommodation itself imposes a sufficient burden on religious freedom to merit injunctive relief—has been discussed briefly in a few articles, and they are a good starting point if you're interested in a more thorough look at the Wheaton dissent.

Dahlia Lithwick and Sonja West addressed it for Slate in an article titled, "Quick Change Justice." (http://www.slate.com/articles/news_and_politics/jurisprudence/2014/07/wheaton_college_injunction_the_supreme_court_just_sneakily_reversed_itself.html).  Robert Barnes addressed it for the Washington Post in an article titled, "Supreme Court Sides with Christian College in Birth Control Case." (http://www.washingtonpost.com/politics/courts_law/2014/07/03/622f7b12-02f8-11e4-8572-4b1b969b6322_story.html?hpid=z1). Adam Liptik addressed it for the New York Times in an article titled, "Birth Control Order Deepens Divide Among Justices." (http://www.nytimes.com/2014/07/04/us/politics/supreme-court-order-suspends-contraception-rule-for-christian-college.html?_r=1). And Daniel Fisher addressed it for Forbes in an article titled, “Hobby Lobby Decision Begins to Contort Under its Own Logic.” http://www.forbes.com/sites/danielfisher/2014/07/04/hobby-lobby-decision-begins-to-contort-under-its-own-logic/).

While the Hobby Lobby decision will be the subject of much commentary, the very quick development of a potentially contrary ruling of the Court later the same week is somewhat remarkable.  As is the lengthy dissent signed by the Court's three female justices on an unsigned order in Wheaton. It's a safe bet that the discussion and debate is only beginning.

 

http://lawprofessors.typepad.com/appellate_advocacy/2014/07/guest-post-daniel-l-real-on-wheaton-college-v-burwell.html

Appellate Justice, Current Affairs, United States Supreme Court | Permalink

Comments

Jonathan Adler has done a nice job of focusing the discussion on what the Wheaton College ruling means and does not mean in his article titled, "More on What the Wheaton College Injunction Does (And Does Not) Mean for Contraception Coverage." (http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/07/06/more-on-what-the-wheaton-college-injunction-does-and-does-not-mean-for-contraception-coverage/) As he notes, there are certainly viable scenarios where the Court could eventually uphold the accommodation, despite finding that there is a serious enough allegation of harm to merit injunctive relief, and the Court's language in the Hobby Lobby decision could allow it to find the accommodation does not pass muster under RFRA, despite being a "less restrictive" alternative.

The Court's discussion of the accommodation in Hobby Lobby does, at the least, create an impression that the accommodation is a legally viable alternative to the ACA requirements. And the Court's ruling on the Wheaton College injunction does, at the least, create an impression that the accommodation itself poses a serious enough threat to religious freedom to merit injunctive relief. And, while those two are not legally inconsistent, they do leave open a pretty big question about the scope and future development of the Hobby Lobby decision for future cases. Those questions are compounded some by the fact that the Court seemed to go to great lengths to dispel concerns about future scope and to limit the decision in Hobby Lobby, only to open up the questions again with an injunction ruling three days later.

Another point that I find interesting is the underlying assertions in the injunction cases. The notion appears to be that Wheaton (and the others seeking similar relief) are arguing that completing the accommodation form makes them complicit in providing the objected-to contraceptive coverage because once they complete the form they are triggering the obligation of someone else to provide the coverage. Yet they don't (for now) object to notifying the government of their objection, even if that notification triggers the same actions of somebody else providing the coverage.

Posted by: Daniel Real | Jul 7, 2014 4:58:08 AM

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