By Leslie Francis
reprinted from HealthLawProf Blog
I write this post with more than a little trepidation; I’m as unhappy as anyone about what the Court made of the Religious Freedom Restoration Act last week. Nonetheless, given the current state of play, I’ve tried to see whether there are any ways to try to limit the damage.
This Supreme Court term has featured a striking number of unanimous decisions. What has drawn unanimity in these cases has been the narrow basis on which they were decided. Commentators have praised Justice Roberts for his political skills in bringing the Court together—demonstrating that at least one branch of government remains functional and shoring up claims to judicial legitimacy. Other observers note, however, that the unanimity is only skin deep—and point to the cases in which the Court divided 5-4 as symptomatic. So suppose we perform a thought experiment on one of the most divisive decisions of this term, Hobby Lobby. How could the decision have been narrowed? How should it have been narrowed? Such an examination is invited by Justice Alito’s statement that the Court’s holding is “very specific.” It is also invited by Justice Kennedy’s concurrence, which opens with the assertion that the Court’s opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. Finally and disturbingly, it is also invited by the observation that the Court has quite quickly, in the case involving Wheaton College, opened wide one of the apparently narrow doors.
1. The decision’s analysis of whether corporations are protected under the Religious Freedom Restoration Act (RFRA) shifts between individual and corporate religious liberty. While at times Justice Alito’s opinion asserts baldly that corporations have rights to religious liberty, this assertion is not necessary for his actual analysis. In Section III.A, the Court begins with the religious liberties of individuals that are protected whether they choose to organize their businesses as sole proprietorships, partnerships, or closely held corporations. In the words of the Court: whether corporations exercise religious liberty is “quite beside the point.” In Section III.B.1, by contrast, the Court appears to forget what it had just said, arguing that “person” in RFRA should be construed as in the Dictionary Act to include corporations, since nothing in the context indicates Congress meant otherwise. Perhaps what leads the Court astray in this section is the concession that not-for-profit corporations can exercise religious beliefs through their corporate purpose. The Court rightly observes that it is difficult to see why these corporations should be considered persons under RFRA but closely held for profit corporations with similar purposes should not be. This point is fair enough, but it does not entail that all corporations under any circumstances should be seen as persons under RFRA. Indeed, in Section III.B.2, the Court reverts to the assertion with which it began, that furthering the religious liberty of the corporation furthers the religious liberty of the individuals whom it represents. Here, too, it is not easy to see why this should be true for non-profit corporations but not for closely held profit making corporations. But it would still stretch the imagination to believe that Congress meant RFRA to protect corporate religious liberty wholly divorced from the religious liberty of those acting through the corporation. Section III.B.4 observes that the Court was given no examples of publicly traded corporations seeking RFRA protection and that agreement among shareholders (including institutional shareholders) on the pursuit of religious objectives might be practically unlikely. I suspect this observation is jejune, especially if socially responsible investment proposals take wider hold and pull institutional investors away from certain corporations. But there is a theoretical distinction to be made here as well: that individuals exercise their religious liberty through their decisions to invest in publicly traded corporations, not directly through the actions of the corporation itself.
2. The decision is about only 4 types of contraceptives, all of which are reasonably believed to function as abortifacients: Plan B, the emergency contraceptive ella, and two IUDs. It is not even about other forms of contraception, and certainly not about medical care more broadly. The Court’s conclusion is that the requirement to provide these potential abortifacients is a “serious violation” of religious beliefs and that the costs of not providing the coverage are substantial. HHS’s primary argument, as presented by the Court, was that the connection between the provision of the insurance coverage and the actual destruction of any embryo was “too attenuated” to burden religious beliefs. The Court refuses to second-guess whether the judgments of responsibility involved were “reasonable,” relying instead on whether the religious beliefs were “sincerely held,” a matter of “honest conviction.” But this is surely to paint with a broader brush than the Court actually means. Surely the test cannot simply be the honesty or sincerity of the belief: otherwise, the dissent would be correct and employers who honestly believed that they were furthering sin by hiring employees who did not practice the tenets of their religion, or employers who honestly believed that their employees should not be vaccinated would be RFRA protected. But there is a distinction here that neither HHS nor the Court appears to have appreciated. It is arguable that the risk of complicity in abortion is a substantial burden on religious views, in a way that other requirements regarding contraception may not be. The view that an entity warranting protection begins at fertilization—and not at implantation or at the point at which possibilities of twinning have ended—is a judgment not only of religious beliefs about the behavior that is permissible for oneself but also of religious beliefs about what it is permissible for some to do to others. In other words, it can be brought under the principle of preventing harm, given the religious assumption that an entity warranting protection begins at fertilization; it is not simply a matter of personal choice. Moreover, the judgment that these four contraceptive forms may act post-fertilization is accurate (even if the probability is small in any given case)—unlike, for example, an empirical claim that a method of contraception that suppressed ovulation is an abortifacient. Requiring Hobby Lobby to provide abortifacient-risking contraceptives thus arguably imposes a more substantial burden on religious beliefs than requiring it to provide other forms of contraception or other forms of medical care.
3. The decision is only about whether the contraception mandate is the least restrictive alternative the government could have chosen to further a compelling interest. The Court points out that the government itself provided an alternative for not-for-profit corporations. The Court also points out that HHS provided no showing of the costs of paying for the four types of contraceptives at issue. Perhaps the case would have been different if the government had faced the possibility of covering all forms of contraception, or had not provided a roadmap to a convenient alternative.
4. The decision considers only cases in which the rights of women are not substantially burdened, not cases in which the consequences for women are greater than the absolute zero proclaimed in Justice Alito’s opinion. In this argument, the Court relies on the assumption that women employees of Hobby Lobby will be able to receive contraceptives from another mechanism, at no greater cost to themselves. If, however, the result of a RFRA protection would be to significantly impede a substantial governmental interest, the analysis could result in a different conclusion.
The ruling in the Wheaton College litigation may bring several of these potential limits into question. However, it is worth reading what the Court actually said in its order. Wheaton College sought an injunction against application of the requirements of the Affordable Care Act to them, when they had notified HHS that they were claiming a religious exemption but had not filled out the prescribed form authorizing their insurer to provide the coverage instead. Wheaton’s view is that the act of authorization—unlike the act of claiming the religious exemption—would implicate it in a serious wrong. The Court notes that if the government notifies Wheaton’s insurer, the college’s employees and students will continue to be able to receive contraception free of charge. To be sure, the government is not currently set up to notify the insurer, but it could be (and could have been), thus avoiding the problem. Justice Sotomayor’s dissent argues that the government’s chosen mechanism is the least restrictive alternative for achieving the government’s interest in providing contraception and that the Court said so in Hobby Lobby. Likely so in the short term, as HHS will be scrambling to develop an alternative mechanism. But at most what this ruling puts into question about Hobby Lobby is whether the mechanism cited as a potentially less restrictive alternative—the mechanism created for religious non-profits such as Wheaton College—is in the end the least restrictive alternative the government could have chosen. It does not preclude HHS from figuring out another way to provide contraceptive services to employees or students of institutions expressing conscientious refusal to participate in the process. Nor does it imply complicity (and hence RFRA coverage) whenever the act of conscientious refusal results in an obligation for someone else to act, or whenever someone claims complicity by relying on religion.
Perhaps this post is nothing but picking at crumbs. Hopefully, it outlines strategies for limitation that can do more than buy time. If it does not, Justice Alito’s insistence on the narrow specificity of the Court’s reasoning will ring cruelly hollow and cynically disingenuous.