Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
1. Tom Smith is the sole owner and chief executive officer of TS-Co, a software company that employs more than 50 people and is therefore subject to the ACA. TS-Co sponsors a self-insured health care plan for its employees. Joe Wilson is an employee of TS-Co who suffers from Amyotrophic Lateral Sclerosis, or ALS, commonly known as Lou Gehrig’s Disease. ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and spinal cord; the disease destroys motor neurons and with them the ability of the brain to initiate and control muscle function. Eventually, the disease leads to total paralysis. Most people with ALS die of respiratory failure or pneumonia, typically within three to five years of the onset of symptoms.
From another TS-Co employee, Smith learns that Wilson has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. Smith is a devout Methodist who shares the United Methodist Church’s disap- proval of research and therapies based on stem cells derived from human embryos. Smith does not wish to manage his company’s benefit plan in a way that conflicts with his religious beliefs; although he is concerned for Wilson’s health, he is adamantly opposed to facilitating the use of embryonic stem cells in any way. He thinks it unlikely that the company health plan will pay for the care Wilson will receive during his participation in the clinical trial, but when he raises the issue with the plan administrator, he learns that under section 1201 of the ACA (which in turn created a new section 2709 of the Public Health Service Act (“PHA”)), the health plan must cover the costs of routine patient care associated with clinical trials involving treatments for cancer and other life-threatening conditions. See 42 U.S.C. § 300gg-8. In this way, the ACA was meant to expand patient access to and participation in such clinical trials.[Footnote 1] Although the plan would cover only the costs of Wilson’s routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, Smith believes that by covering Wilson’s routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
Smith brings suit under RFRA a seeking declaratory and injunctive relief relieving the company of the obligation to comply with section 2709 of the PHA, insofar as it requires the coverage of costs associated with clinical trials employing embryonic stem cell therapies. Smith argues that requiring his company’s health plan to cover the costs of any medical care associated with a treatment to which he objects on religious grounds interferes with his wish to run the company in a manner consistent with his religious convictions. Based on the court’s decision today, Smith and TS-Co would have a colorable argument that the coverage required by section 2709 imposes a substantial burden on their free exercise rights. Although the government might have an argument that section 2709 is supported by a compelling interest in the development of effective therapies for life-threatening conditions such as ALS, based on this court’s least-restrictive means analysis, a court might conclude that the government itself, in lieu of objecting employers, could pay for all costs associated with an individual’s participation in a clinical trial. In the meantime, granting TS-Co an exemption from the PHA would mean that Wilson’s workplace insurance would not cover any costs associated with his participation in the clinical trial; and that, as a practical matter, might render Wilson unable to participate in the trial.
2. Bill Blasdell is the sole owner and chief executive officer of Get Out!, a corporation which operates a small chain of three outdoor-gear stores. Prior to enactment of the ACA, the company did not provide health insurance to its employees; but with 75 employees, Get Out! is now subject to the ACA’s employer mandate. Blasdell has been a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be ad- dressed through prayer which realigns one’s soul with God. Consistent with that view, Christian Science historically has disapproved of most forms of conventional medicine. None- theless, in practice, many Christian Scientists have availed themselves of conventional medical treatments, and in recent years, the church itself has become more tolerant of conven- tional medicine. See, e.g., Paul Vitello, Christian Science Church Seeks Truce With Modern Medicine, New York Times A20 (Mar. 24, 2010).
Earlier in his life, Blasdell was among those Christian Scientists who embraced traditional medicine. But after witnessing his wife suffer through a brutal treatment regimen for breast cancer at a premier medical center, only to die as a result of complications from the treatment and missteps by the medical staff, Blasdell came to believe, consistent with the teachings of his church, that conventional medicine does far more harm than good. His belief was reinforced in the year following his wife’s death, when his ulcerative colitis went into remission during prayer-centered treatment at a Christian Science nursing center.
As a result of his religious convictions, Blasdell is adamantly opposed to facilitating the use of conventional medical care by his employees. He is willing for Get Out! to sponsor an employee health plan that pays for care at Christian Science nursing centers, but he believes that his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles.
After Get Out!’s request for an exemption from the employer mandate is denied, Blasdell and the company bring suit under RFRA contending that the employer mandate is a substantial burden on the free exercise of their religious beliefs. Pursuant to the court’s decision today, both Blasdell and Get Out! would have a colorable argument that compliance with the employer mandate, by facilitating company employees’ use of conventional medical treatments to which Blasdell is opposed on religious grounds, represents a substantial burden on his religious freedom and that of the corporation. And although the government, again, would no doubt urge that it has a compelling interest in pursuing universal access to healthcare, Blasdell and his firm could invoke this court’s decision for the argument that the ACA’s exemptions belie that interest, and that, in any event, the government could pursue its goal through publicly-funded healthcare, individual tax credits, or other means that do not require employers to subsidize employee healthcare that is inconsistent with their own religious beliefs.
3. Red Pie, Inc., sells and ships to consumers nationwide a variety of frozen, specialty pizzas. Bill and Betty Ann Bowers and their three children own and operate the firm, which has over 100 full-time employees. The Bowers belong to a church which is affiliated with the Southern Baptist Convention. The Convention’s position on marriage and sexuality may be summarized as follows:
We affirm God’s plan for marriage and sexual intimacy—one man, and one woman, for life. Homosexuality is not a “valid alternative lifestyle.” The Bible condemns it as sin. It is not, however, unforgivable sin. The same redemption available to all sinners is available to homosexuals. They, too, may become new creations in Christ.
Southern Baptist Convention, Position Statement on Sexuality, available at http://www.sbc.net/aboutus/pssexuality.asp (last visited Nov. 7, 2013). The Bowers’ local congregation endorses and promotes the same view; in the past several years, the pastor of their church has given several sermons condemning same-sex marriage, adoption by gay and lesbian parents, and the repeal of the military’s “Don’t Ask, Don’t Tell” policy. The Bowers accept and follow their church’s teaching on homosexuality. When same-sex marriage was recently legalized in their state as a result of a court decision, the Bowers, knowing that they had a number of gay and lesbian individuals in their employ and in keeping with their religious beliefs, amended the Red Pie employee benefits plan to make clear that spousal insurance benefits are not available to the same-sex spouses of Red Pie employees; as their state does not prohibit employment discrimination on the basis of sexual orientation, and because the ACA does not require employers to provide insurance coverage to employee spouses, this change was legally permitted.
Mr. and Mrs. Bowers become alarmed when they learn that one of their employees, Stan Jones, has submitted a request to take three weeks of unpaid leave under the Family and Medical Leave Act (FMLA) so that he and his husband may attend the expected birth of their child via surrogacy in California, bring the baby home, and bond with the child. See 29 U.S.C. § 2612(a)(1). The Bowers view the idea of two gay men conceiving a child by surrogacy and bringing that child into their home as an abomination to the Lord. They instruct their office manager to deny Jones’ leave request and inform him that neither they nor their company can in any way recognize or facilitate such an immoral arrangement; Jones in turn protests the denial, citing his FMLA rights. After thinking about the matter further, they decide the Bowers are so troubled that they can no longer keep Jones in their employ. The next day, they fire him.
After Jones contacts the Wages and Hours Division of the Department of Labor, the Department files suit against Red Pie under the FMLA contending that Jones was both wrongfully denied his right to parental leave under the statute and fired in retaliation for having requested FMLA leave. See 29 U.S.C. §§ 2615(a)(1), 2617(b)(2). Red Pie invokes RFRA as a defense to the Department’s suit, contending that the FMLA as applied to Red Pie in this instance would constitute a substantial burden on the free exercise rights of the corporation and its owners, as it would force them either to recognize and facilitate a parental arrangement they view as sinful or suffer substantial penalties under the FMLA for refusing to do so. [footnote 2] The leave mandated by the FMLA is, of course, unpaid, and to that extent it would arguably constitute no more than a minimal burden on Red Pie’s asserted free exercise rights; [footnote 3] but Red Pie could readily invoke this court’s decision for the proposition that the substantiality of the burden turns not on the degree of interference imposed on the company’s religious exercise but rather solely on the coercive nature of the FMLA—compliance with which is mandatory on pain of litigation and significant penalties for the failure to do so. Ante at 56–57; see 26 U.S.C. §§ 4980D(a) & (b)(1), 4980H(a) & (c).
The Department of Labor potentially might fair better at the next, strict-scrutiny phase of the analysis. Certainly, in terms of the least restrictive means of supporting and promoting families, the Department would have a strong argument that there is no substitute for granting leave time to parents at critical times when their presence is most needed by their children. But that point aside, would a court deem the interests underlying the FMLA sufficiently compelling to constitute “interests of the highest order,” Wisconsin v. Yoder, 406 U.S. 205, 215 , 92 S. Ct. 1526, 1533 (1972), or “paramount interest[s]” jeopardized by “the gravest abuses,” Sherbert v. Verner, 374 U.S. 398, 406, 83 S. Ct. 1790, 1795 (1963), such that Jones’ rights under the FMLA would trump the asserted religious interests of the corporation? And, in considering whether the government has “establish[ed] a compelling and specific justification for burdening these claimants,” ante at 60 (emphasis in original), would a court assess the strength of the government’s interest in promoting familial relationships generally, or its interest in promoting the bonds between same-sex parents and their children, as that is the interest which Red Pie contends is irreconcilable with its religious interests? And if the latter, would that more specific interest qualify as a compelling interest? The outcome of that analysis is far from clear to me under today’s precedent.