Reproductive Rights Prof Blog

Marty Lederman on Little Sisters of the Poor

Marty Lederman on Balkinization provides an excellent elaboration of the argument I made in my previous post regarding the slippery slope that follows from the argument that a non-profit group "triggers" morally objectionable contraceptive coverage merely by signing an opt-out notice:

. . . [T]he whole point of the government's "secondary" accommodation is to allow nonprofits such as Notre Dame to refuse to “contract, arrange, pay, or refer for contraceptive coverage,” even if they do offer health insurance.
Why isn't that enough to alleviate any possible, alleged burden on Notre Dame's religious exercise?

i.  Notre Dame's principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby "authorize" third parties--Aetna and Meritain Health, Inc.--to provide such coverage, and thereby become morally responsible for the use of the contraceptives subsidized by those other parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine):  The self-certification Notre Dame would sign--substantively identical to the assertions of objection that it makes in its very RFRA complaint--merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not "authorize" anything:  Federal law does that work.  As the district court explained, “[i]f Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.” 

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect:  As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate--and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.  

For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist.  Under Notre Dame's theory, the first pharmacist could object to the accommodation--and insist that customers not receive the drug at all--because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act. . . .

Marty Lederman on Little Sisters of the Poor

Marty Lederman on Balkinization provides an excellent elaboration of the argument I made in my previous post regarding the slippery slope that follows from the argument that a non-profit group "triggers" morally objectionable contraceptive coverage merely by signing an opt-out notice:

. . . [T]he whole point of the government's "secondary" accommodation is to allow nonprofits such as Notre Dame to refuse to “contract, arrange, pay, or refer for contraceptive coverage,” even if they do offer health insurance.
Why isn't that enough to alleviate any possible, alleged burden on Notre Dame's religious exercise?

i.  Notre Dame's principal argument is that by filing a certification asserting that it opposes contraceptive coverage, as the HHS Rule requires, it would thereby "authorize" third parties--Aetna and Meritain Health, Inc.--to provide such coverage, and thereby become morally responsible for the use of the contraceptives subsidized by those other parties.

This argument, however, is premised on a simple mistake of fact and law (not religious doctrine):  The self-certification Notre Dame would sign--substantively identical to the assertions of objection that it makes in its very RFRA complaint--merely notifies the relevant third parties that Notre Dame is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not "authorize" anything:  Federal law does that work.  As the district court explained, “[i]f Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception.” 

Of course, Notre Dame is correct that its certification of religious objection would have a legal effect:  As with any religious accommodation of this kind, the whole point of the accommodation is that the opting out by the objector would shift the responsibility to someone else (whether a state actor or, as here, another private party) to do what the religious objector declines to do.  But if that is enough to establish a substantial burden on Notre Dame's religious exercise, then it would effectively mean that governmental religious accommodations taking the form of "opt outs" for dissenters would themselves often create the very conflict with religion that they are designed to alleviate--and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.  

For example, take a law that permits individual religious pharmacists to refuse to dispense certain drugs, and that provides that in such a case the drugs shall be dispensed by a nonobjecting pharmacist.  Under Notre Dame's theory, the first pharmacist could object to the accommodation--and insist that customers not receive the drug at all--because its refusal to dispense would "trigger," or "authorize," the second pharmacist to commit a morally objectionable act. . . .

Justice Sotomayor Temporarily Blocks Contraception Rule in Challenge By Religiously Affiliated Groups

The New York Times: Justice Blocks Contraception Mandate on Insurance in Suit by Nuns, by Steve Kenny & Robert Pear:

Justice Sonia Sotomayor on Tuesday temporarily blocked the Obama administration from forcing some religious-affiliated groups to provide health insurance coverage of birth control or face penalties as part of the Affordable Care Act.

Acting at the request of an order of nuns in Colorado, Justice Sotomayor issued the stay just hours before the requirement was to go into effect on New Year’s Day. She gave the Obama administration until Friday to respond to the Supreme Court. . . .

____________________________________________

It's frustrating that this story repeats the claimants' assertion that they are being "forced" to "provide" contraceptive coverage.  In fact, as the story later acknowledges, the nuns are allowed to opt out of the contraceptive coverage requirement simply by completing a form, in which case the insurer would provide coverage separately.    But that isn't enough for the plaintiffs.  According to their lawyer, "“The Sisters would also be required to sign a form that triggers the start of that coverage . . . . In good conscience, they cannot do that. So the ‘accommodation’ still violates their religious beliefs.”  Under that logic, the salary they pay their employees could be seen to "trigger" all kinds of acts they disagree with -- including the out-of-pocket purchase of contraception if the health plan doesn't cover it.  Employers who employ and serve a diverse population ought not to be able to impose their religious beliefs on their employees in this way.

-CEB