Analysis Contraception

Orrin Hatch’s Amicus Brief in the Hobby Lobby Lawsuit: All Bark, No Bite

Imani Gandy

A group of 11 Republicans, led by Orrin Hatch, has filed an amicus brief in support of Hobby Lobby’s ongoing effort to wiggle its way out of complying with the provision in the ACA's birth control provision.

A group of 11 Republicans led by Sen. Orrin Hatch (R-UT), has filed an amicus brief in the Tenth Circuit Court of Appeal in support of Hobby Lobby’s ongoing effort to wiggle its way out of complying with the birth control benefit, the provision in the Affordable Care Act that requires all insurance plans to cover birth control without co-pay as part of basic preventive care. In addition to Hatch, the other ten Republican lawmakers include Sen. Daniel Coats (R-IN), Sen. Thad Cochran (R-MS), Sen. Mike Crapo (R-ID), Sen. Chuck Grassley (R-IA), Sen. James Inhofe (R-OK), Sen. Mitch McConnell (R-KY), Sen. Pat Roberts (R-KS), Sen. Richard Shelby (R-AL), Rep. Lamar Smith (R- TX), and Rep. Frank Wolf (R-VA).

The brief is a meandering exercise in venting political gripes and complaints, and is almost entirely devoid of any substantive or accurate legal discussion. Hatch and his cohorts spend most of the brief musing about the politics of the birth control benefit and the purpose of the Religious Freedom Restoration Act (RFRA) and very little space discussing the constitutionality or legality of the birth control benefit. When they do bother to discuss the constitutionality of the policy, they either get the law spectacularly wrong, as they do when they claim that a for-profit secular corporation like Hobby Lobby counts as a “person” under RFRA, or they outright ignore inquiries critical to a constitutional analysis of the birth control benefit—for instance, whether the birth control benefit substantially burdens religious freedom.

As to the question of who or what constitutes a “person” under RFRA, Hatch and the others claim that the district court incorrectly concluded that “secular for-profit corporations” “are not ‘persons’ for purposes of the RFRA.”

Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” (Amicus Brief, p. 2.)

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They are flat-out wrong.

RFRA does not include a specific definition of “person.” In its order denying a preliminary injunction in favor of Hobby Lobby, the district court expressly noted as much. Certainly, Hobby Lobby and other for-profit secular organizations want to be counted as “persons,” and they want their status as persons to trump that of women—actual people—who should have access to a full range of health-care services without being subject to the religious whims of general business corporations that don’t serve only members of the same faith.

Certainly, Hobby Lobby argued that it should be counted as a person, but the district court declined—a fact the amicus brief signatories failed to mention.

RFRA does not include a specific definition of “person.” Plaintiffs argue that Hobby Lobby and Mardel qualify as “persons” based on the general definition included in 1 U.S.C. § 1. [1 U.S.C. § 1 is, essentially, the dictionary portion of the United States Code. -ed.] That section provides: “In determining the meaning of Any Act of Congress, unless the context indicates otherwise… the words ‘person’ and ‘whoever’ includes corporations… as well as individuals.” … The qualification “unless the context indicates otherwise,” is intended to assist the court “in the awkward case where Congress provides no particular definition, but the definition in 1 U.S.C. section 1 seems not to fit.” (District Court Preliminary Injunction Order, p. 17 (citations omitted).)

This is precisely such an “awkward case.” Congress provided no definition of “person” in RFRA, so the district court in Hobby Lobby, tasked with determining whether an examination of context indicated that Congress did not intend for corporations to be counted as “persons” under RFRA, expressly held that the term “persons” as used in RFRA (in other words, as used in context) does not include general business corporations.

“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” (District Court PI Order, p. 18.)

The argument made by the Hatch Eleven—that “Congress could have carved out such a category of unprotected ‘persons’ in RFRA itself or in a later statute, but it did not”—is, quite simply, dishonest and contrary to law.

Moreover, that they did not even attempt to argue that Citizens United granted personhood to corporations for all purposes strikes me as tacit agreement with the district court’s lengthy discussion of corporate personhood in the context of religious liberty:

Corporations have constitutional rights in some circumstances, such as the right to free speech, but the rights of corporate persons and natural persons are not coextensive. Courts have not extended all constitutional rights to all corporations. […] The purpose of the free exercise clause is “to secure religious liberty in the individual by prohibiting invasions thereof by civil authority. Churches and other religious corporations have been accorded protection under the free exercise clause because believers “exercise their religion through religious organizations.” However, Hobby Lobby and Mardel are not religious organizations. Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion. (District PI Order, pp. 10-11 (italics in original; emphasis added).)

For all their discussion of the purpose of RFRA and the politics that led to its enactment, it’s telling that Hatch and the others ignore the district court’s clear and concise explanation of why Hobby Lobby is not a “person” for purposes of either the free exercise clause or RFRA.

As to the question of whether or not the U.S. Department of Health and Human Services (HHS) mandate violates RFRA generally, Hatch and his cohorts again fall short. They ignore the most crucial element of the RFRA inquiry, and that is whether or not the activity mandated by the government “substantially burdens” a person’s exercise of religion. They complain that the “HHS mandate places a heavy burden on religion” without discussing exactly what that purported burden is. (In a previous article about the Hobby Lobby lawsuit, I pointed out that many birth control benefit detractors attempt to read the term “substantial” out of the phrase “substantial burden,” and suggest that any burden on religion at all is a “substantial burden,” and therefore unconstitutional. This is not the case.)

The Hatch brief’s silence on the “substantial burden” element of the RFRA inquiry is deafening. This is an inquiry that must be addressed before moving on to the final two prongs of the RFRA inquiry: Is the application of the burden to the person “in furtherance of a compelling governmental interest?” And is the application of the burden to the person the “least restrictive means of furthering that compelling governmental interest?”

Or, as the district court put it:

No one questions that the Greens’ beliefs are sincerely held or that the mandate burdens, at least indirectly, the Greens’ ‘own exercise of [their] sincerely held religious beliefs. The critical question is whether the mandate imposes a ‘substantial’ burden on the Greens for purposes of RFRA. (District Court PI Order, p. 20.)

Hatch and the others don’t answer the “substantial burden” question, but the district court did: The answer is no.

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.

The ACA requires that any insurance plan provided by a corporation include coverage of basic preventive health needs; employees earn or pay for these plans. The fact that, under such plans, health decisions made by a patient and doctor outside of and irrelevant to the context of the workplace might offend the religious sensibilities of the patient’s employer is not a substantial burden on religion.

The oddest gripe seems to be that the Obama administration wasn’t expansive enough in its accommodations for certain religious organizations at the outset—that the administration “ignored RFRA in formulating the narrow religious exemption at the outset and have only begun to attend to its requirements because of litigation and the reaction to public scrutiny.” (Amicus Brief, p. 14.)

Nothing in the Patient Protection and Affordable Care Act explicitly excludes the implementation of the women’s preventive health services coverage requirement from the Religious Freedom Restoration Act. RFRA therefore directly controls Defendants’ exercise of their rule making authority to implement the women’s preventive health services coverage requirement. Yet Defendants ignored RFRA in designing the mandate and began to address its requirements only in response to litigation and public opinion. (Amicus Brief, p. 9.)

To which I respond: No kidding! The formulation of the policy was done with the full input of the very same people who are now complaining about it. The administration took into account the complaints of the United States Conference of Catholic Bishops and other interest groups that have lodged their objection to the HHS mandate, even when those complaints shifted with the political winds (as they did when the Catholic Health Initiative first approved the Obama administration’s religious accommodations, then didn’t, or when the Catholic bishops lauded the compromise as a “first step,” only to decry it as “unacceptable” a day later).

Hatch and the others go on for five pages, expressing their outrage that HHS did not obtain some sort of preliminarily ruling on the birth control benefit (from whom, I don’t know—they complain that requests for an analysis of the mandate under RFRA were ignored but don’t provide any basis for the implicit claim that the Obama administration was required to provide such an analysis in advance of promulgating the birth control benefit policy), and breathlessly assert that the administration’s “refusal to address RFRA in any meaningful way (except when sued in federal court) is remarkable … [and] consistent with the way [the Obama administration] ha[s] treated the law of religious freedom from the beginning of the HHS mandate.” (Amicus Brief, p. 20.) 

Remarkable? Really? There’s nothing particularly remarkable about the Obama administration instituting a policy to address the inequality in health care—a policy favored by the majority of Catholics and those of other religious denominations, mind you—without first appeasing various political factions with ever-shifting political agendas.

According to the Hatch brief itself, there’s nothing remarkable about it. In their discussion of RFRA, the writers claim that “Congress recognized, as did various witnesses who testified in hearings on RFRA, that Government bureaucrats and agencies tend to discount the need for religion-based exemptions because they identify their own programs with the public interest.” (Amicus Brief, p. 8.) The brief goes on to quote Rev. Dean M. Kelley, counselor on religious liberty at the National Council of Churches:

“[W]hen every branch of Government and every agency likes to think that it is, by definition, expressing the public interest, and the public interest in its most compelling level, there is need for a neutral referee to judge that claim against the private claims of religious liberty.” (Amicus Brief, p. 8)

Such statements make Hatch and the others’ outrage at the Obama administration for not adequately addressing religious liberty concerns seem somewhat feigned. After all, it makes little sense for them to, on the one hand, condemn the Obama administration for ignoring RFRA, and on the other, claim that the government always ignores religious liberty concerns and that the specific purpose of RFRA is to provide a neutral referee (in other words, a court) to judge such religious liberty concerns.

So, which is it? Is the Obama administration supposed to ensure that legislative enactments or regulatory policy don’t violate RFRA in advance of promulgating them? Is it Congress’s job? Or is it the court’s job to referee such claims? That Hatch and his cohorts suggest that it is the court’s job makes their pages-long diatribe against the Obama administration bizarre.

Ultimately, there’s nothing remarkable about the administration’s behavior. It instituted health-care policy that it didn’t believe posed a threat to religious liberty—in all likelihood because the majority of Americans support access to and use contraception, and because contraception is not abortion—and as a result the administration faces lawsuits from parties who believe the health-care policy does pose such a threat. There’s nothing at all unusual or remarkable about that. That’s the way the system is designed to work—checks and balances and all that.

What is remarkable is the virulent backlash to a fairly innocuous policy about women’s health care—a backlash that is completely divorced from facts and science and that is based on a religious minority’s attempt to write into law religious, extreme, (and entirely incorrect) beliefs that Plan B and Ella are abortifacients.

They aren’t.

Also remarkable? That 11 Republican lawmakers have thrown their political weight behind a company that actually provided contraception to its employees long before the Obama administration came along and required them to do so.

That’s right: Hobby Lobby complains that the birth control benefit is “out of step with the rest of Hobby Lobby’s policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs,” but Hobby Lobby actually provided its employees what it (incorrectly) views as abortion-causing contraception devices.

Recently after learning about the nationally prominent HHS mandate controversy, Hobby Lobby re-examined its insurance policies to ensure they continued to be consistent with its faith. During that re-examination, Hobby Lobby discovered that the formulary for its prescription drug policy included two drugs—Plan B and Ella— that could cause an abortion. Coverage of these drugs was not included knowingly or deliberately by the Green family. Such coverage is out of step with the rest of Hobby Lobby’s policies, which explicitly exclude abortion-causing contraceptive devices and pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the inconsistent drugs from its policies.”

Of course, any discussion of Hobby Lobby’s shifting religious views is conspicuously absent from the amicus brief. And, of course, Hatch and the others don’t mention that scientific research shows that  Plan B and Ella prevent fertilization and can not cause abortion.

Facts and logic undercut their prevailing narrative, and they can’t have that, now can they?

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

No Solution in Sight for Supreme Court Birth Control Fight

Jessica Mason Pieklo

With all the legal briefs filed to the Supreme Court and no solutions proposed, it's going to be up to the justices to put an end to the lawsuits swarming the Affordable Care Act.

By late Wednesday evening when the final supplemental briefs were filed in Zubik v. Burwell, the challenge to the Affordable Care Act’s birth control benefit, it was clear this case will not have a clean ending. In fact, it could very well result in a deadlocked U.S. Supreme Court and patchwork contraception insurance coverage across the country.

Almost exactly a week after oral arguments in Zubik, the Court justices ordered attorneys from both sides to file briefs setting out possible paths to resolving the case, in a move signaling they were looking to prevent a tied 4-4 ruling. Specifically, the Court asked the lawyers to address whether religiously affiliated nonprofit hospitals, nursing homes, and colleges could be separated out from a government-administered health insurance plan that would be the source of contraceptives for the nonprofits’ employees and students. In its initial responses, the Obama administration grudgingly admitted the idea proposed by the Court was theoretically possible, but insisted it was both impractical and not currently allowed under the ACA.

The religious objectors, on the other hand, insisted that if the contraception benefit contained an exemption for churches, it should have the same exemption for hospitals and universities. And while the religious objectors didn’t come right out and say so in this latest round of briefs, if they get an exemption then so too, eventually, would secular for-profit companies like Hobby Lobby.

The religious objectors have insisted that the Religious Freedom Restoration Act (RFRA) is broad enough to allow the objectors to interfere with, based on religious principle, third-party insurance companies from offering contraception insurance for their employees and students. But that argument evolved during oral arguments in March—or rather, the religious objectors clarified to the Roberts Court that if the Court was nervous about making such a ruling based on the precedent it would set for future RFRA challenges, then the Court should just grant businesses full exemptions from the law. The effect of such a ruling would be to block, writ large, contraception access for private employees and students altogether unless the government were to step in and provide that coverage directly.

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In its final supplemental briefing to the Roberts Court, the religious objectors finally came clean and made that argument directly. “[I]f the government really believes the only way to accomplish its objectives [of providing seamless contraception coverage] is to force every religious nonprofit to contract for an insured plan so the government will have something suitable to piggyback on, then petitioners’ concerns that the government wants to hijack their plans have been confirmed,” wrote the objectors. They continued, “Petitioners’ alternative—where the separate policies offered by commercial insurers are offered to employees of self-insured objectors as well—would reinforce the true separateness of those policies, rather than just reinforcing the RFRA violation.”

The Obama administration opened its supplemental brief taking this clarified argument by the religious objectors to the woodshed: “In a sharp departure, petitioners now acknowledge that they cannot invoke RFRA to prevent the government from requiring that the insurers with which they contract also provide separate contraceptive coverage to their employees.”

“But petitioners assert that it is not enough that insurers provide that coverage entirely outside petitioners’ health plans and without their involvement, as the accommodation already requires,” it continued. “Petitioners also insist that the coverage must consist of contraceptive-only insurance policies, not direct payments [to anyone] for contraceptives. And they add that women must take affirmative steps to enroll, and cannot be covered automatically.”

In other words, the religious objectors’ legal argument is that they are entitled under RFRA to make accessing contraception coverage in the private marketplace as onerous as possible, the result of which would mean many people would just not get the contraception they need.

This sounds a lot like conservatives’ approaches to abortion restrictions. And it should. The same sense of moral entitlement to regulate ad infinitum women’s bodies, expressed as the state’s interest in promoting fetal “personhood,” is the theoretical precursor to the religious objectors’ arguments in Zubik. In litigating the availability of contraception coverage under the ACA, religious objectors have effectively borrowed the moral justifications anti-choice lawmakers use to restrict abortion access—that women’s health care must always take a back seat to purported claims of religious freedom—and pasted them into their legal arguments as to why the private sector has the right to dictate who can access contraception in this country, and when and how.

With a Supreme Court evenly split ideologically on the contraception benefit and the limits of RFRA, it’s unlikely these latest briefs will do anything to avoid a split decision here. If these challenges are going to get resolved this term, and with them the argument that private employers can block their employees from accessing contraception coverage, then one of the justices is going to have to change their mind. Right now, that seems like a stretch.