Commentary Contraception

The O’Brien Decision: A Gift to the Obama Administration From a Bush Appointee

Imani Gandy

Late last month, Honorable Carole Jackson in the Eastern District of Missouri issued a forceful rebuke of the arguments being made by the various religious organizations that are filing lawsuits against the Department of Health and Human Services alleging that the birth control benefit infringes upon their religious liberty.

See all our coverage of O’Brien v. United States Department of Health and Human Services here.

Late last month, Honorable Carole Jackson in the Eastern District of Missouri issued a forceful rebuke of the arguments being made by the various religious organizations that are filing lawsuits against the Department of Health and Human Services alleging that the birth control benefit infringes upon their religious liberty.

Jackson’s opinion is sensible and grounded in the law, a point that seems odd to make considering that it is a judge’s job is to do just that… issue opinions that make sense as a matter of law. Still, after having read case after case in which courts swallowed the idea that requiring employers to offer health insurance plans that include contraception without a co-pay constitutes a violation of the First Amendment and infringes upon the religious liberty of both secular and non-secular companies (and their owners), reading an argument that made sense, both logically and as a matter of law, was refreshing.

In O’Brien v. United States Department of Health and Human Services, O’Brien Industrial Holdings (OIH) (a secular, for-profit company in St. Louis, Missouri, in the business of mining, processing, and distributing refractory and ceramic materials and products) and its owner Frank O’Brien alleged, among other things, violations of the Establishment Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The Court dismissed plaintiffs’ claims.

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As I have noted in previous articles on this subject, the RFRA forbids the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government “demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In O’Brien, the Court stated that “substantial burden must place more than an inconvenience on religious exercise,” and that “a substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.” The Court then found that the birth control benefit does not constitute a substantial burden on the exercise of religious freedom:

[T]he challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

Precisely.

The birth-control benefit does not require anyone to use birth control, nor does it require any employer to directly provide birth control to its employees. Rather, it leaves the decision to the employee herself. If a female employee want to use birth control, she can, and she can obtain it through her health insurance plan without a co-pay. If she doesn’t want to use birth control, she doesn’t have to.

In reaching its conclusion, the Court in O’Brien argued that RFRA is not intended to be used as a sword to coerce unwilling individuals to play by the sword wielder’s rules:

RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own.

Indeed, if the financial support of which plaintiffs complain was in fact substantially burdensome, secular companies owned by individuals objecting on religious grounds to all modern medical care could no longer be required to provide health care to employees.

The Court in O’Brien, like courts before it, side-stepped the issue of whether or not the term “person” in RFRA includes a corporation. Plaintiffs wanted the Court to “presume corporations are included within the word ‘person’ in RFRA” based upon Citizens United. (In my view, the “corporations are people, my friend” precept in Citizen’s United, which deemed corporations to be “persons” for purposes of the Free Speech Clause, goes too far when applied to the Establishment Clause. Corporations are not sentient beings capable of exercising religious freedom.) The Court declined, citing Newland v. Sebelius.

In Newland (which I discussed here), the Court demurred on both the Citizens United and the “substantial burden” issues. The Newland Court threw up its hands: It assumed the existence of a substantial burden on the exercise of religion, and moved on to the “compelling interest/least restrictive means” bit of analysis, ultimately finding that the government had failed to demonstrate that “refusing to exempt Plaintiffs from the preventive care coverage mandate” was the least restrictive means of furthering its compelling interest in promoting women’s public health.

The Court in O’Brien, however, declined to address the Citizens United/corporations-are-people-too analysis because it didn’t need to address it. The Court determined that the birth control benefit did not substantially burden religion, and that was enough to dismiss the RFRA claims. And, in tackling the “substantial burden” question head-on, the Court provided somewhat of a gift to the government—a well-reasoned argument (from a Bush appointee, no less!) that provides guidance to other courts, not just in the Eighth Circuit but across the country.

[You can read my mark-up of the Court’s order here on Scribd.]

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.

Analysis Law and Policy

How Conservatives Are Using a 2012 Supreme Court Health-Care Case to Challenge Trans Rights

Jessica Mason Pieklo

Buried in the legal complaint challenging the Obama administration's recent agency actions on transgender rights is a legal claim designed to appeal directly to conservative judges.

Back in 2012, when conservatives’ first challenge to the Affordable Care Act (ACA) landed before the U.S. Supreme Court, the Court ruled that much of the health-care reform law was constitutional. But buried in that opinion was a poison pill—one with which conservatives are trying to kill off the Obama administration’s recent actions to protect transgender rights.

Eleven states and their officials sued the Obama administration in Texas federal court on Wednesday over its recent federal guidance advising public schools to allow transgender students to use bathrooms that align with their gender identity. Much of the joint lawsuit argues, essentially, that the Obama administration is illegally trying to rewrite federal civil rights statutes in a series of administrative agency actions called “guidances.” Such claims are effectively baseless, as Rewire Senior Legal Analyst Imani Gandy has already done an excellent job demonstrating here and here.

But still, buried in the lawsuit filed Wednesday is one additional claim that could prove irresistible for a conservative federal court judge in Texas—namely, District Judge Reed O’Connor, a 2007 President George W. Bush appointee who is expected to hear the case.

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The bulk of the Obama administration’s guidance lets some schools and employers know that it is the official, legal position that current civil rights statutes like Title VII and Title IX protect transgender students from discrimination on the basis of their sex. Should those entities instate policies that conflict with that interpretation, then they risk a loss of federal funding. Conservatives argue that threat of funding loss is unconstitutional. And they point to National Federation of Independent Businesses (NFIB) v. Sebelius, the decision that largely upheld the Affordable Care Act, for support.

“The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion,” the Court wrote in NFIB. “[T]he expansion accomplishes a shift in kind, not merely degree,” the Court continued. “The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.” The effect of that decision was to prevent the Obama administration from using that funding as the carrot to induce all states into setting up their own health-care exchanges and expanding Medicaid.

That question—whether the Obama administration’s guidance in the reading of Title VII and Title IX is a fundamental shift, or more of a shift in degree—is exactly what conservatives are pressing a federal district court judge to answer.

“By placing in jeopardy a substantial percentage of Plaintiffs’ budgets if they refuse to comply with the new rules, regulations, guidance and interpretations of Defendants, Defendants have left Plaintiffs no real choice but to acquiesce in such policy,” the complaint challenging the Obama administration guidance states.

That, right there, is the same “coercion” argument advanced and accepted by the Supreme Court in 2012.

The lawsuit challenging the transgender guidances borrows heavily from the language in NFIB‘s opinion, including quoting that the federal government “puts a gun to the head” of states when it makes the receipt of federal dollars dependent on doing or not doing a particular action.

But the thing is, the Obama administration’s guidance on transgender rights and its notice that certain federal funds hinge on compliance is not at all like the fight in NFIB. This is because of one key, compelling reason: In NFIB, states were not required to buy into the Affordable Care Act. The law was just written in a way that was designed to entice them into doing so.

That is not the case with the Obama administration’s guidance on transgender rights. Schools and federal agencies—in other words, recipients of federal funds—are already required to comply with federal law. Should they not, whether it be in the form of implementing discriminatory bathroom policies or refusing to hire an employee based on their gender identity, those federal funds recipients risk losing those federal dollars.

Think of it this way. The law describes the kind of “spending” relationship between the states and the federal government like it’s a contract. The federal government “offers” the states money to support certain state programs, whether they be public schools or health-care centers. But that “offer” has conditions, and one of those conditions is that the state recipient of those dollars obeys federal law. And in this case, obeying federal law means allowing transgender people to use the bathroom that aligns with their identity.

But the challengers argue that, effectively, the Obama administration has changed the terms of their contract; they say Title VII and IX were never intended to protect transgender students, and instead demand the laws require sex-segregated facilities like bathrooms and locker rooms.

“Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights,” the complaint states.

The argument advanced by conservatives that federal agencies lack the power to interpret the statutes they are charged with enforcing is disingenuous at best. But it’s also an argument conservative federal courts have been willing to accept in the past, so it’s entirely likely a conservative judge would accept that argument here too. Which is exactly why of the 11 states joined in the lawsuit, conservatives chose Texas—and the ultra-conservative Fifth Circuit Court of Appeals—to bring this claim.

There are a lot of unanswered questions regarding the legitimacy of Wednesday’s lawsuit. It’s not entirely clear the plaintiffs have standing to bring this suit in the first place, and that’s not even touching on all the legal deficiencies Gandy already mentioned. But if we’ve learned anything from the health-care reform litigation, it’s that conservatives care very little if the facts and law are on their side, so long as at least one federal court is willing to enable their attacks on policies they lack the legislative and political power to block in the first place.