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Jessica Mason Pieklo: Welcome to RJ Court Watch, a legal podcast produced by Rewire, with your hosts, senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode we talk about, you guessed it, the contraception lawsuits.
But this episode is a little different. Instead of bringing on a guest to dive into one specific piece or part of the legal challenges to the coverage requirement, Imani and I are going to take the rulings on ourselves. We now have a decision from the Roberts Court in the Hobby Lobby case, another preliminary order in the religious nonprofit challenges in the Wheaton College case, as well as news the administration is once again tinkering with the accommodation to the coverage requirement. All of that is a long-winded way of saying the battles over the contraception coverage requirement in the Affordable Care Act are far from finished.
JMP: Imani, I gotta say, it feels kind of like we’re losing right now. Are we losing? Why are we losing? What’s going on?
Imani Gandy: That’s a good question. You know, I think we are losing in the short term, but I think the opposition, the birth control benefit naysayers, are inadvertently making a really strong argument for single-payer [health care]. I think what they have done is they have set up a strategy whereby they litigated, well particularly the Becket Fund for Religious Liberty, which as much as I begrudgingly hate to admit it, I have to give them props for handling this litigation as well as they have, and for handling it in a parallel manner. So, they represented Hobby Lobby, and a couple of years ago, I think we can all agree that it was thought to be a little outrageous that Hobby Lobby would be deemed a person for purposes of the Religious Freedom Restoration Act [RFRA] and would be able to get an exemption from the birth control benefit. Or at least I did. But, two years later, here we are. Hobby Lobby has won the right to exempt itself from the birth control benefit on the basis that there is a less restrictive means to advance the government’s interest. And the less restrictive means is there because the HHS [U.S. Department of Health and Human Services] crafted it, right? It’s the accommodation that they have allowed religious non-profits like Wheaton College, Notre Dame, Little Sisters of the Poor, to avail themselves of. And so this accommodation requires that they fill out a form, forward that form to their insurer, and their insurer will step in and provide the contraceptive coverage. So while they were litigating the Hobby Lobby case saying that “we don’t want to do the birth control benefit, there’s a least restrictive means, that least restrictive means is the accommodation.” At the same time, they’re litigating on behalf of Wheaton College, Little Sisters of the Poor, and about five others, and that’s not including the umpteenth hundred other nonprofits litigating this accommodation that are not being represented by this law firm. But they are arguing that the accommodation itself violates RFRA because by filling out this form they are basically triggering this process by which contraception will be available to their employees. So it’s a dual track litigation strategy that they have been advancing, and it’s actually pretty doggone smart if you ask me, even though I hate to admit it. But yeah, we’re losing, and it’s hard to not think we’re losing in part because the Obama administration screwed up in its effort to accommodate all of these religious complaints.
JMP: There’s a lot there, so let’s unpack that. And I agree, I think you’re read of the strategy is right on the money. So we have Hobby Lobby arguing that for profit corporations should have these exemption rights, and the Supreme Court, Justice Alito said “sure thing.” We’ll make it look narrow though, right, so that it’s only closely held for-profit corporations. And that sort of appearance of a narrow ruling was followed up by saying well, the Hobby Lobby folks only really object to four specific types of contraception, so see, it’s going to be even narrower. And then almost within the same breath turned around and granted the injunction to Wheaton College, this evangelical college out of Wheaton, Illinois, that as you said, objects to the accommodation. So there seems to be this wink-and-a-nod that the Supreme Court is saying this is a narrow approach, we’re going to be judicious and restrained in how we attack the issue of religious liberties and balancing those against employee rights. But, their rulings have done the exact opposite, made possible in large part thanks to that litigation strategy by the Becket Fund.
IG: And it’s also in part I think due to the sort of abysmal litigation strategy of the government. I mean, they’ve been arguing these birth control benefit cases for years now, and entirely absent from the argument is the women these cases are going to effect. I mean, it’s understandable that the client, that their client is the government, so they are supposed to advance government policy and government argument. But part of litigation strategy is making a case have a human aspect to it, of making a case seem like its important for actually humane reasons. And that is what the opposition has done. The opposition has made these claims that the Hahns, and the Greens, and the people who run Wheaton College, and the people who run Notre Dame are sort of infused with this religion, and Jesus, and how unfair it is that the government is coming in and saying that your religious viewpoints don’t matter and we’re going to force you to do these horrible things that violate your faith, and isn’t this terrible. And so it puts a human face on basically what is a technical, legal argument. And the government hasn’t really done that. They haven’t really talked about how this is going to affect the women. I mean, they’ve talked about it very grand, very broad terms about how it’s important for women to have contraception and they cite statistics. But they don’t actually go down to a granular level of you know, Jane Doe works at Hobby Lobby. Jane Doe has three daughters. Jane Doe wants to be able to have contraception, her daughters want to be able to have contraception. Or John Doe works at Hobby Lobby and his wife and his daughters want to be able to have contraception. I mean, there’s a way to argue these cases to make the impact on people, on employees more at the forefront than what they have.
JMP: Yeah I think our opposition has done this is these contraception cases, and I think we saw it specifically in the buffer zone cases, in McCullen, where we had the plump grandmas as the face of the anti-choice protest movement when we know that’s not the case. You know, you brought up a really interesting point and something that has me concerned moving forward in the future litigation on this too. And that is the extent to which the administration has failed to put a human face on those most affected by the contraceptive coverage requirement. In the Hobby Lobby decision, and even in Wheaton College the Supreme Court, the conservative majority said, well the government made a case that providing contraception coverage is a compelling interest and we’re really not going to get into that at the moment. We’re going to, sort of, take them at their word for it. And it got picked up as well the Supreme Court agreed that there is a compelling government interest in providing contraception. I don’t know if it’s that firm a statement, and with the administration not aggressively defending the coverage requirement, and with the opposition effectively putting a human face on it, that when we get to the Supreme Court again on these cases, which we will in some fashion I’m convinced on the nonprofit accommodation, that that’s going to give the conservative majority an opportunity to craft a ruling that says whether or not they believe it’s a compelling interest, and I don’t know if we’re going to get it.
IG: What’s interesting about the interest the government advanced as compelling is that they keep using these broad statements that it is public health and gender equality. And the Supreme Court actually said that the advanced interest was public health or gender equality, but providing cost-free access to the FDA approved contraceptives. So they assumed an interest as compelling, but that interest was never actually stated by the government. So it’s very odd in that respect. And secondly, they said specifically that we find it unnecessary to adjudicate this issue. So it very well may be that they follow the Tenth Circuit Court of Appeals route and say “meh, its not that compelling” or that the government hasn’t made its case that its compelling. And frankly, I’d be hard pressed to disagree because the government isn’t doing its job, in as you say, putting a human face on this issue. So I agree with you. I think we’re going to be seeing this next year. I would hope that the Supreme Court’s statements in Hobby Lobby and Wheaton College that the decisions in those two cases won’t have any effect on female employees’ ability to access contraceptives. But given the litigation strategy, it seems as if you know the Becket Fund and all their clients are backing HHS into a corner, and in so doing backing the Supreme Court into a corner, whereby they’re going to have to chose either contraceptive access or religious liberty. And I think we all know who is going to lose in that calculus.
JMP: So, Imani, let’s make you and I queens in charge of this litigation. So we now work at the Department of Justice. How should we deal with these cases, because I know you and I have gone back and forth on this about a hundred times. Why are they arguing this? What is going on? So, let’s file our amicus brief.
IG: Well for starters I think they need to stop, especially in the accommodation cases, they need to stop using language that makes it seem like they are mocking people’s religious faith.
JMP: Oh, agreed.
IG: So, in the briefs they keep saying, they say that it is ridiculous that Wheaton College objects to filing the form. And I think there is a very good legal argument as to why it is ridiculous that they object to filing out the form, and I think Justice Sotomayor made that argument in her dissent. But you’ll notice in her dissent she repeatedly stated that she had no doubt that Wheaton College’s faith was real, she had no doubt that they sincerely believed that signing this form was a violation of their belief. But what she said is sincerely believing signing a form is a violation of your religious faith doesn’t actually make it so. And so I think the government needs to focus more on the “sincerely” part of a sincerely held belief. I think it was a mistake for them not to go after both Wheaton College and Hobby Lobby on the sincerely held belief prong because as you and I know, and as hopefully most of our listeners know by now, both Hobby Lobby and Wheaton College offered contraception in their plans before they were told by the Obama administration that they had to. So how sincerely held can a belief be if you didn’t know you were violating your religious faith until somebody pointed it out to you.
JMP: So this is great lawyering here because, you’re right, attacking the plaintiffs, attacking the Greens effectively, you know, I can’t remember the exact analogy, that they were “fighting with dragons”—
IG: Fighting invisible dragons?
JMP: Fighting invisible dragons. So, Justice Sotomayor does this great thing in the dissent of Wheaton College where she basically, as you said, lays out the case against crafting an injunction for Wheaton College that says, respectfully, you can believe in the spaghetti monster but that doesn’t make the belief a reality and that it is up to the courts to decide where that line is. So the Obama administration could, as you said, stop making it look like they are making fun of people’s religious beliefs and, in fact, just shift that burden back to the courts. To say your honors, we’re not suggesting that these people don’t believe this, or that they don’t sincerely really think this. We’re asking you to do your job and decide whether or not filing out a form is too burdensome or not.
IG: And in addition I think there’s been a lot of talk about what substantial burden means. Is the substantial burden calculus addressed to what will happen if you are forced to violate your religious faith. Is it the fines you will incur? Is that the substantial burden? Or is it the activity that the government is asking you to engage in? Is that the substantial burden? So is the fact that Wheaton College is going to incur umpteen million dollars in fines, is that the substantial burden? Or do we have to look at filling out that form—it might be a burden, but is it a substantial burden? And I think there’s a real question as to what the substantial burden applies to—what category of activity it applies to, and I think we have a real problem with the courts allowing these plaintiffs to read “substantial” out of the substantial burden requirement so it becomes any burden whatsoever to my religious faith rises to some sort of constitutional or statutory crisis.
JMP: Maybe naively I thought that the Hobby Lobby decision would in some ways bring an end to some of this fight, that we would get a decision from the Roberts Court and in some ways while the fight over health reform wouldn’t be over writ large, that particular portion of it would be. How wrong I was. So knowing that this is going on and on and on and we have a likely Supreme Court case on the nonprofit accommodation and then the sort of big question that is out there that I know you have some thoughts on and that is, okay so Hobby Lobby gets this accommodation. What are the chances that it’s acceptable to them?
IG: I think the chances that it’s acceptable to them are zero to none. As my dad says, slim to none means slim just left town. It’s one of those things that if you read their briefs and their strategy carefully they never actually said “we want the accommodation you’ve made available to these other religious nonprofits like Wheaton College and Notre Dame and Little Sisters of the Poor.” They never said they that “we want that accommodation to be made available to us.” They simply said they were not happy being forced to comply with the birth control benefit and that the accommodation offered to these other groups was an example, or proved, that there was a less restrictive means. But that doesn’t mean that they are going to be happy with that accommodation. I’d be willing to bet you dollars to donuts that the next thing we’re going to see is Hobby Lobby filing a lawsuit joining in with all of the religious nonprofits and now they are going to be claiming that the accommodation is a violation of the Religious Freedom Restoration Act as applied to closely held corporations.
And so we have to remember that closely held corporations make up about 90 percent of the corporations in the United States. Ultimately I think the goal of these lawsuits is to make it so that no corporation, or no organization that is not publicly traded on Wall Street, no organization will have to be involved in any way, in any scheme that may eventually lead to some woman down the line taking contraception after they consult with their doctor and if they have this extra special insurance plan that they may or may not have to pay for out-of-pocket. I mean it’s this long line of attenuated circumstances between the corporation and the woman popping the pill. But I think that the Supreme Court, certainly by issuing this emergency injunction, has indicated that they are open to the idea that the accommodation itself violates RFRA. And if that’s the case, then what is HHS supposed to do? I mean, are they supposed to figure out who everyone’s insurer is, then contact that insurer?
Let me back-track a little bit. So the Supreme Court could just notify HHS in writing. But the Supreme Court didn’t say that in that written notice they have to tell HHS who their insurer is. So HHS knows who Wheaton College’s insurer is through the litigation, through discovery and written documents and whatnot. But there are umpteenth other religious nonprofits who haven’t yet sued the government that what, they are going to write HHS now and say we object, good luck figuring out who our insurer is, thumbs up?
JMP: We’ve got these two tracks you’ve outlined and the Obama administration is already tinkering with the accommodation in light of this emergency injunction with Wheaton College, and we know that won’t be acceptable, right? I mean we know no matter what the administration comes up with they will sue on that. We have the lawsuits challenging the subsidies under the federal exchanges and those will continue to go on, and I think you’re right, Hobby Lobby is going to challenge whatever it is that the Obama administration comes up with so that the options are nobody ever has to cover contraception or the administration gives up, that this becomes too political a battle for them to wage. That it is just too costly. That they have to sacrifice too much time and too much energy defending the lawsuits. I mean there are what over 100 lawsuits filed on the contraception coverage requirement alone, and now a new set of accommodations will be coming out this fall, which means a whole new host of lawsuits. At some point I think the plan is to make people give up. Whether it is people trying to access contraception or the administration itself, and that’s deeply cynical. That’s an abuse of process in my mind.
IG: Oh it’s absolutely an abuse of process. But I mean we’ve been very doom and gloom thus far, but I do think there’s a sliver lining, and it’s not a silver lining that is going to make itself apparent in the short term, but I think in the long term what these people have done is inadvertently pave the way for single-payer. Because if they are going to continue, whatever the Obama administration does the opposition is going to say “is this the least restrictive means?” and the fact that the Obama administration is tweaking the accommodation again before the Little Sister of the Poor and Wheaton College cases get resolved gives the other side ammunition in those cases to say well obviously this isn’t the least restrictive means because you went ahead and tweaked it even further. So I think it’s a mistake for the Obama administration to tweak it in advance. But all that said, if you read the briefs of a lot of these corporations, these organizations, they list a laundry list of things that might less restrictive. One of those things is the government providing contraceptives to women directly. And now the amusing part about this is, that conservatives have been ranting and raving ever since Sandra Fluke testified on Congress, they’ve been ranting and raving that “women are just sluts who cant keep their legs closed, and why should I have to pay for you to have sex? Why are you looking to daddy Obama to pay for your birth control?” When in reality up until now that is not what we’ve been asking. We have been saying that we want our birth control covered as part of our wages because its covered in our health insurance plan and health insurance is wages, it is what we earn as part of our labor. Now if they want to say that the government is just going to directly provide contraception to women, then that really is asking taxpayers to fund birth control and that’s not what conservatives want, but that’s the corner they are backing themselves into.
So it’s going to be really interesting when they wake up and realize that what they’ve accidentally done is argued for a complete government take-over of health care, which I for one am entirely for, and I think most progressives and anyone listening to this podcast is entirely for. But, I don’t think the conservatives will be too happy with that option if and when that takes place.
JMP: Hear, hear. And to give a little bit of tough love to the administration here, your point earlier when we were talking about their failure to put a face on this battle, that might be changing too. You know another interesting wrinkle in all of this is of course after the Hobby Lobby and Wheaton College decisions came down, the Equal Employment Opportunity Commission [EEOC] issued a new set of regulations related to pregnancy discrimination and buried in a footnote in those EEOC regs was a note that says, oh by the way, it continues to be our position that those employers who fail to cover prescription contraceptives in their health insurance plans engage in gender discrimination and violate Title VII. The same day the Department of Labor announced that those employers who were planning on dropping contraceptive coverage as a result of the Hobby Lobby decision needed to notify their employees thus arguably giving them the ammunition necessary to file an EEOC complaint and start that process claiming gender discrimination, which is a different bar than what the government needs to prove under RFRA. That’s a way to say, the Obama administration may have screwed up initially in the defense and litigation in these cases, however some of the correction seems to be pointed in the right direction.
IG: Right, and I would love to see some women actually suing their employees, whether through the EEOC or whether through intervening in the lawsuits already filed like some students have from Notre Dame. I would really like to see women standing up for themselves, or at least someone standing up for women, because we’ve just been lost in this brouhaha over religion. It’s just a bunch of dudes, talking about what women need and talking about our health care as if a large portion of our health care just doesn’t matter. They need to be able to siphon off reproductive health care as something apart from health care, and that’s apparent in the Hobby Lobby decision. Alito attempted to be so narrow, and attempted to siphon off vaccines and blood transfusions because, oh, we’re not necessarily saying that this is going to apply to those types of medical procedures, it only applies to contraception, and that’s just ludicrous in my mind.
JMP: It’s ludicrous and deeply offensive because what Alito is saying is that it is discrimination except when it impacts women, and then it’s not really discrimination at all. Then it’s just freedom!
IG: Every time I start reading the Hobby Lobby decision I just start yelling out loud and snarling in disgust because it is just so frustrating, especially, and this is one thing I wanted to talk about, the fact that Catholic theological legal thinking has somehow made its way into a Supreme Court opinion. That. That’s. As you said to me via [Google] chat, that is terrifying.
JMP: Right. So if our listeners haven’t caught that in the Hobby Lobby decision was in a footnote I think footnote 34—and if I’m actually right about that off the top of my head—
IG: It is absolutely footnote 34, and it’s funny that we both know that.
JMP: Okay, time for a vacation. So, in the Hobby Lobby decision Justice Alito drops this footnote citing Catholic moral theology for the legal conclusion that the Greene’s legal beliefs were substantially burdened. So when people freak out about Sharia Law, all I’m going to do is point them to Hobby Lobby v. Burwell and say what, we’re okay with this because this isn’t case law that Justice Alito cited, this is Catholic theology.
IG: Right. And it has no place in a Supreme Court opinion. It really doesn’t. I mean, the fact that they are citing Catholic theology but ignoring science in the very same opinion is really alarming to me. I mean the fact of the matter is is that the Hahns and the Greens and umpteenth other plaintiffs challenging the requirement believe life begins at conception. They believe the morning after pill is an abortifacient. Well, frankly, what you believe doesn’t matter because it is absolutely not true. You can sincerely believe that gummy bears will cause abortions but the fact of the matter is it is not true. And it is the court’s job to force a plaintiff to back up its allegations in a complaint with facts. And the fact that no court, not the district court, not the Tenth Circuit, or the Supreme Court required Hobby Lobby to put forth some evidence demonstrating that the contraceptive devices to which they oppose were abortifacients when they are not. The overwhelming medical consensus is that they are not. They’re not. And I find it really, really disturbing that they just glossed over that and said well lets just go with it. When those religious beliefs are based on false statements of scientific fact I believe it is incumbent on the Court to say, look, you can believe in what you want, but what you believe is not true, and so we are not going to base case law on some belief that is just patently not true.
JMP: Right. There is a difference between belief and fact, and the court very willingly substitutes one for the other, in the cases of reproductive health care, particularly in Hobby Lobby, and they do it in the abortion cases all the time. Which again I think is just further support for the idea that from the Court’s perspective reproductive health care isn’t really health care because it impacts women, and therefore it doesn’t matter or it doesn’t have to be science and evidence driven but can be ideological and religiously, faith-based driven. It’s not real. It’s other. It’s for something other than us.
IG: If science has no place in the courtroom, then we are just slipping down a slide toward a Catholic theocracy, and I don’t want to live in a Catholic theocracy because I’m not Catholic.
JMP: Right. I was raised Catholic and still don’t want to live in a Catholic theocracy. No thank you!
So, looking ahead, we don’t have anything right now before the Supreme Court, but we know its coming. We’ve got a bunch of cases in the Tenth Circuit, we’ve got Notre Dame in the Seventh Circuit. What should we be on the look out for strategically from our friends at the Becket Fund as these cases advance?
IG: I think we should be looking for them to file suit on behalf of Hobby Lobby claiming that the accommodation that HHS crafted for the religious nonprofits violates RFRA as applied to closely held corporations. I think that we should be looking for the Becket Fund to wait for these new accommodations that the Obama administration is crafting and say “we’re entitled to preliminary injunctions in all of these cases” because the Obama administration has gone and mucked about in the existing accommodation. Those are the two things off the top of my head.
JMP: I hope we see some employees who have received notice from their employers that they’ve dropped contraceptive coverage file some equal employment complaints with their local equal employment chapters and absolutely pursue these as gender discrimination claims, because they are.
IG: What I really think we need to do is pass the damn ERA [Equal Rights Amendment].
IG: I forget who it is, Benjamin Cardin, I think is a Senator out of Maryland who keeps introducing a bill that would make it so that states don’t have to go back to the beginning process and get that, what is it, two-thirds?
JMP: Yeah, we only need more three states!
IG: We only need three more states! Why can’t we find three more states?
JMP: One of them is Illinois. We should be able to get Illinois. And Arkansas. And Mississippi, and there’s a handful, but yes, I am on the ERA bandwagon with you, Imani. Pass the ERA.
IG: I mean we’ve got a lot of women, a lot of men too, a lot of activists who are down for this cause, so maybe we need to figure out a way to organize, to use this abomination of a decision to our advantage, because if the ERA were passed, I don’t think they would have been able to pass this decision. I know in previous years abortion rights has been sort of the death knell for the ERA, and there are a lot of Democrats and I think people on our side who are afraid to bring up the ERA because they don’t want to have the fight about abortion. But it’s time to have the fight about abortion.
JMP: At the very least, the Equal Rights Amendment would force justices like Alito and Scalia to recognize and put women in their decisions. I mean I think the word “woman” appeared in the Hobby Lobby decision a mere 13 times. completely and totally absent from their calculus is an affirmative statement that women have equal constitutional rights as men would make that impossible.
IG: Right. And it would also make it impossible, for example, for the Tenth Circuit Court of Appeals to reject gender equality as a compelling interest as it did in their decision in the Hobby Lobby case.
JMP: Okay, so this is perfect, because in about 30 minutes Imani and I have drafted out the amicus brief we are going to file to help kickstart the administration’s defense of this very important contraceptive coverage requirement. We wouldn’t be so critical of it if we didn’t believe so strongly in it, so this is tough love from friends, and also move forward on passing the ERA as a way to put an end to all of this nonsense once and for all from the right.
IG: Yup. Yup. And I’m not exactly one of those “ready for Hillary” people, but maybe if we get a female president next that will help jumpstart the ERA, because frankly it’s 2014 and it’s ludicrous that it hasn’t been passed yet.
JMP: Hear, hear. Put it on the ballot. Get as many women on the ballot. Heck. Hillary. Put Elizabeth Warren in the mix and have an embarrassment of riches of qualified female candidates on the ballot just to prove the point of what is going on with the right.
Thank you for listening to RJ Court Watch, and be sure and catch all of the reporting and analysis on the contraception benefit at www.rhrealitycheck.org.