Constitutional Law Prof Blog

HHS Proposes New Rules on Contraception Coverage, Exempts Religious Employers

HHS today issued proposed new rules on the contraception coverage requirement under the Affordable Care Act, including new exemptions for religious employers.  The proposed rules come on the heels of a spate of litigation by religious employers challenging the contraception coverage requirement as violating their religious liberties.

The D.C. Circuit most recently rejected these claims based on the administration's promise to issue new regs exempting religious employers, but the court also retained jurisdiction over the case, holding it in abeyance, to monitor the administration's adoption of new rules.  The United States District Court for D.C. similarly recently rejected the claims, but declined to retain jurisdiction and dismissed the case.

According to HHS, the proposed rules allow non-profit religious organizations that object to contraception on religious grounds to side-step the ACA's contraception mandate, but still give employees free access to contraception.  Here's how it'll work:

The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.

With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer.  The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.

With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator.  In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.

The proposed rules also simplify and clarify the definition of "religious employer" for the purpose of exemption from the contraceptive coverage requirement.

The proposed rules are the first step in issuing new regulations.  HHS will collect comments on the rules until April 8, 2013, and then move forward on finalizing them.

SDS

District Court Dismisses Archbishop's Contraception Challenge

Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women.  The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.

Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe.  (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.)  The D.C. Circuit wrote, "We take the government at its word and will hold it to it."  So too Judge Jackson.

Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance.  Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.

SDS

Challenge to Proposed San Francisco Ordinance Banning Nudity

Proposed Ordinance 120984 banning public nudity, scheduled for vote by the San Francisco Board of Supervisors on November 20, is already the subject of a constitutional challenge filed in federal court.

This pre-enforcement - - - indeed, pre-adoption - - - challenge suffers from a lack of Article III ripeness,  but an adoption of the ordinance and the passage of 30 days for the ordinance to become effective would cure that defect. 

On the merits, the complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause.  One of the more interesting arguments flows from one of the proposed ordinance's two exceptions: any person under the age of five years, and "any permitted parade, fair, or festival held under a City or other government issued permit." 

The more generalized First Amendment challenge to a law banning nudity is not likely to suceed under the federal constitution.  However, the California constitution could certainly be construed to protect nude expression.  And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco's identity as a haven for free expression, including nudity. 

Reports from SF weekly here and here.

RR
[image via]

Another Catholic School Challenge to Women's Health Regs Dismissed

Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.

The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District.  We posted on the earlier case, Belmont Abbey College v. Sebelius, here.  This case, by a different judge, now makes it even less likely that any of these suits will succeed.

(There are two other district court rulings.  In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs.  In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor.  Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)

The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness.  Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.

Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative.  She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans.  Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice."  Op. at 11.

SDS

Florida Judge Overturns "Medical Privacy Concerning Firearms" Act

Judge Marcia Cook (S.D. Fl.) last week ruled in Wollschlaeger v. Farmer that the Florida's law restricting health care providers from asking whether a patient owns a firearm violates free speech.  The ruling permanently enjoins the state from enforcing four provisions of the act and from disciplining health care providers who violate them.  We posted on the case previously--when Judge Cook granted a preliminary injunction--here.

The ruling is a blow to state efforts to restrict health care providers from talking and asking patients about gun ownership.  But the ruling makes clear that any worries about discrimination against gun owners was based on only the thinnest actual evidence.  (In other words, the law protected against something that didn't exist--at least in any widespread, systematic way.)  Thus, this case isn't a ruling on a clash between First and Second Amendment rights--because the state failed to show that there was any real interference with Second Amendment rights driving the law.  This is a pure free speech case, and the state's stated interests just don't hold up.

A group of doctors and health care providers brought the case challenging Florida's ban--which prohibits doctors and health care providers from talking or asking patients about firearms ownership.  The plaintiffs claimed that the law chilled their speech about preventive health issues.  Judge Cook agreed.  The state's biggest problem, according to Judge Cook, was that it didn't show that the law was tailored to meet any particular problem--that the state failed to show that there was any widespread infringement on the right to bear arms or any widespread discrimination against gun owners by health care providers.

Florida Statutes 790.338 provides:

(1) A health care practitioner . . . or a health care facility . . . may not intentionally enter any disclosed information concerning firearm ownership into the patient's medical record if the practitioner knows that such information is not relevant to the patient's medical care or safety, or to the safety of others.

(2) A health care practitioner . . . or a health care facility . . . shall respect a patient's right to privacy and should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient, or the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.  Notwithstanding this provision, a health care practitioner or health care facility that in good faith believes that this information is relevant to the patient's medical care or safety, or the safety of others, may make such a verbal or written inquiry.

. . .

(5) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

(6) A health care practitioner . . . or a health care facility . . . may not discriminate against a patient based solely upon the patient's exercise of the constitutional right to own and possess firearms or ammunition.

After ruling that the plaintiffs had standing to challenge these four provisions of the law, and that the challenge was ripe, Judge Cook ruled that these provisions violated the First Amendment.  She wrote that the provisions were content-based restrictions on speech, subject to strict scrutiny; that they were a ban on (especially protected) truthful, non-misleading speech; and that the state's interests didn't stand up.

The state said that it had interests in protecting patients' Second Amendment rights, protecting patients' access to health care in the face of discrimination (against those who own firearms), protecting patients' privacy rights, and regulating professionals.  

But Judge Cook ruled that the state couldn't show any widespread infringement on patients' Second Amendment rights, access, or equal treatment.  The law was based entirely on a handful of anecdotes.  Moreover, the law itself contains protections for patients--for example, allowing them not to answer questions about firearms ownership.  The state's interests, Judge Cook ruled, were therefore insufficient to withstand strict scrutiny analysis.

They were also insufficient to withstand a less rigorous balancing under Gentile v. State Bar of Nevada, a case setting the free speech bar lower when a state seeks to regulate a lawyer's speech.

Judge Cook also ruled that two clauses were unconstitutionally vague: "relevant to the patient's medical care or safety, or the safety of others"; and "unnecessarily harassing."  Those phrases, she said, do not give sufficient guidance to health care providers as to what speech is covered and what speech is not.

SDS

Ninth Circuit: Religious Marijuana Case Can Move Forward

A three-judge panel of the Ninth Circuit ruled this week that the Oklevueha Native American Indian Church of Hawaii's action under the Religious Freedom Restoration Act seeking declaratory and injunctive relief barring the government from enforcing the Controlled Substances Act against them could move forward.  The court ruled in Oklevueha Native American Chuch of Hawaii v. Holder that the plaintiffs' claims for declaratory and injunctive relief were ripe and that the plaintiff had associational standing.

The case arises out of the plaintiffs' claim that they fear federal prosecution for its members' cultivation, consumption, possession, and distribution of marijuana for religious purposes.  The plaintiffs say that the federal government already seized a pound of marijuana from FedEx that was addressed to a church leader and intended for Oklevueha use.  They now fear federal prosecution.

The district court dismissed the case for lack of ripeness and lack of associational standing, but the Ninth Circuit reversed.  The Ninth Circuit ruled that the plaintiff's case was a valid preenforcement claim, becuase (1) the church articulated a "concrete plan" to violate the law, (2) the government communicated a specific warning or threat to enforce the law against the church, and (3) there was a history of past prosecution or enforcement under the statute.  As to (2), the court ruled that the unusual posture of the case couldn't render the case unripe:

Plaintiffs need not allege a threat of future prosecution because the statute has already been enforced against them.  When the Government seized Plaintiffs' marijuana pursuant to the CSA, a definite and concrete dispute regarding the lawfulness of that seizure came into existence. . . .  This case is unique in that unlike most enforcements of criminal statutes, the seizure did not result in a criminal proceeding that could have afforded Plaintiffs the opportunity to assert their constitutional and statutory challenges to the enforcement of the CSA against them.  But it does not follow that because this enforcement and seizure of property did not provide Plaintiffs a process in which to raise their claims, those claims are not now ripe.

Op. at 3807.  The court also ruled that the plaintiffs' case was prudentially ripe, and that the church had associational standing.

SDS

. . . and Candidate Rick Perry has filed an appeal to the Fourth Circuit

Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction. 

In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.  

RR
[image: Governor Rick Perry, 2006, via]

UPDATE here

Religious Groups Lack Standing/Ripe Claims to Challenge Hawai'i Civil Unions Law

The Civil Unions Law, Act 1, of Hawai'i became effective January 1, 2012.  

 

In the last days of 2011, several religious groups sued for a Temporary Restraining Order (TRO) to stop the Act's implementation and prevent any enforcement against them.  In a relatively brief opinion, federal district judge J. Michael Seabright denied the TRO in Emmanuel Temple v. Abercrombie. 

The complaint seeking the TRO alleged that because Act 1 does not have a "religious exemption," the plaintiffs could suffer a First Amendment injury.  However, the judge found that the claim was not justiciable because the plaintiffs lacked standing and their challenge was not ripe, noting that in many cases the "injury in fact" prong of the standing analysis coincides with an inquiry regarding ripeness.

The judge found that any threat of enforcement of Act 1 against the plaintiffs was "highly speculative."   A number of unforseeable events would have to occur:

• A couple would have to ask plaintiffs to use a particular facility of theirs - - - which presumably would have to be a "public accomodation" - - - for a civil union made possible by Act 1;
• Plaintiffs would have to wrongly refuse based upon a protected ground;
• The couple, having been denied, would have to file a complaint with the Hawaii Civil Rights Commission;
• The state authorities would have to decide to proceed against plaintiffs.

The judge found it was equally speculative that a couple, having been denied, would chose to file a judicial action rather than an action with the Commission.

For ConLawProfs starting the semester with Article III justiciability, this could be the basis of a great class problem. 

Situating the case outside that doctrinal framework, it is an example of religious groups filing federal actions against same-sex relationship recognition, as in New York, despite that state's religious exemption in the statute.

Further, it is yet another incident in the saga of same-sex marriage in Hawai'i; a good review and the latest litigation by same-sex couples challenging the civil union law for not providing marriage is here.

RR
[image: Kahaluʻu Fishpond seawall and wedding chapel, Oahu, Hawaii, on National Register of Historic Places, via]

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

Federal Judge Dismisses Case Against Health Care Reform

Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation.  The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.

Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform.  The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague.  Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.

On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate.  Judge Moon wrote that

The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.  Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.  The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . .  Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform).  Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:

As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .

The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.

Op. at 31.

As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).

As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson.  The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.

As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices.  "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  Op. at 43.

Judge Moon ruled that the religious exemptions also did not violate equal protection.  "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review."  Op. at 46.  The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.

As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association.  "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services."  Op. at 49.  Any required association is minimal.  And the federal act does not require the plaintiffs to speak on, or to support, abortion.

As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce."  Op. at 52 (quoting Head Money Cases.)

Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people.  "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process."  Op. at 53.

SDS

Justiciability and Summers v. Earth Island Institute

The Court heard oral arguments yesterday in Summers v. Earth Island Institute, a case dealing with standing, ripeness, and mootness in a facial challenge to agency procedural rules.  The plaintiffs originally brought two types of claims: Plaintiffs challenged the Forest Service's Burnt Ridge Project, a proposed timber sale in the Sequoia National Forest; and they challenged the validity of Forest Service regulations that exempt certain Forest Service actions, including the Burnt Ridge Project, from administrative notice, comment, and appeal procedures.

The parties settled the first set of claims, dealing with the Burnt Ridge Project.  But the government then argued that plaintiffs' facial challenge of the Forest Service regulations was nonjusticiable: the plaintiffs lacked standing, claimed the government, because they merely alleged an inability to participate in governmental decisionmaking (and not a sufficient cognizable injury); and the claim was not ripe, because plaintiffs didn't wait for the Forest Service to apply the regulations in a concrete setting--that the case was a preenforcement challenge.  Plaintiffs argued that they had standing and that their claim was ripe when filed (because of the their harm from the Burnt Ridge Project), and that it is ripe now (because the Forest Service continued to apply the regulations to other projects).

The argument transcript is here; check out pages 26 to 52 (the plaintiff-respondents' argument) for nice exchanges on standing.  Several law professors filed an amicus, which puts the justiciability issues into particularly good focus.

SDS