A Brendan F. Brown Lecture Series address, given Wednesday, October 3, 2012, at The Catholic University of America Columbus School of Law in Washington, D.C

Rienzi, Mark L.

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Constitutional Challenges: Religious Liberty and the HHS Mandate

The Catholic University of America Columbus School of Law

Journal of Contemporary Health Law & Policy (1985-2015) Volume 29 Issue 1 Article 3 2012 Constitutional Challenges: Religious Liberty and the HHS Mandate Mark L. Rienzi Follow this and additional works at: https://scholarship.law.edu/jchlp Recommended Citation Mark L. Rienzi, Constitutional Challenges: Religious Liberty and the HHS Mandate, 29 J. Contemp. Health L. & Pol'y 1 (2013). Available at: https://scholarship.law.edu/jchlp/vol29/iss1/3 This Address is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Journal of Contemporary Health Law & Policy (1985-2015) by an authorized editor of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu. BRENDAN F. BROWN LECTURE SERIESCONSTITUTIONAL CHALLENGES: RELIGIOUSLIBERTY AND THE HHS MANDATEWednesday, October 3, 2012THE CATHOLIC UNIVERSITY OF AMERICAColumbus School of LawWashington, D.C.Mark L. RienziAssistant Professor, Columbus School ofLawSenior Counsel, Becket Fund for Religious LibertyThank you. Thank you, everybody, for coming. It's a pleasure to be hereto talk about the HHS Mandate. In the eight minutes I have, what I'd like todo is give you a brief overview of what's going on with the litigation, andthen just flag two of the interesting legal issues in questions that the casesbring up.The HHS mandate issued in August 2011 is a rule promulgated by theDepartment of Health and Human Services (HHS), the Department of Laborand the Internal Revenue Service (IRS),' and that rule said that employershave to provide free coverage with no co-pay for certain things that arecalled "preventative services." A sub-agency within HHS then decided thatpreventative services include all FDA-approved contraceptives, sterilizationsand counseling and education related to those things.2. Professor Mark Rienzi was accompanied on a three person panel at the Brendan F.Brown Lecture by Dr. Stephen Schneck, Director, Institute for Policy Research &Catholic Studies and Associate Professor of Politics, The Catholic University of Americaand Ms. Emily Hardman, Communications Director, Becket Fund for Religious Liberty.1. See 76 Fed. Reg. 46,621 (Aug. 3, 2011) (to be codified at 45 C.F.R. pt. 147.130).The Affordable Care Act authorized HHS to set forth the required preventative services.See 42 U.S.C. § 300gg-13(a)(4) (Supp. 2010).2. See U.S. Dep't of Health and Human Servs., Women's Preventive Services:Required Health Plan Coverage Guidelines, http://www.hrsa.gov/womensguidelines (lastvisited Nov. 12, 2012) ("All Food and Drug Administration approved contraceptivemethods, sterilization procedures, and patient education and counseling for all womenwith reproductive capacity.").12 The Journal of Contemporary Health Law and Policy Vol. XXIX: 1At the time, the government issued what was considered, and still isconsidered, a very narrow religious exemption. In other words, thegovernment was aware that this will burden some people's religion, and itsaid: We will have a religious exemption. That religious exemption isexceedingly narrow. It protects a religious employer who meets thefollowing criteria:First, the employer has to focus only on inculcation of the faith. That hasto be the purpose of the religious employer's existence.Second, the employer must hire primarily members of the same faith.Third, the employer must serve primarily members of the same faith.Finally, the employer must file taxes as either a church or a religiousorder.4That's a definition that does cover some churches per se and somereligious orders as such, but it doesn't cover many other things that wenormally think of as religious organizations like The Catholic University ofAmerica, like a religious hospital or soup kitchen or school.5Litigation over the mandate and the narrow religious employer exemptionbegan in November 2011 when we at the Becket Fund filed suit on behalf ofBelmont Abbey College.6 At this point, there are, I believe, either 30 or 31lawsuits challenging the mandate nationwide on behalf of more than 80plaintiffs.7 Those organizations are-many of them Catholic, but not all ofthem Catholic.There are several evangelical schools and evangelical organizations andbusinesses that have filed suit, and essentially while the Catholic plaintiffssay, "I can't be involved in paying for contraception or sterilization or drugsthat cause early abortions," the evangelical plaintiffs typically say, "We haveno problem with the standard contraceptives. Our problem is simply with3. See 76 Fed. Reg. at 46,621.4. Id.5. See Roman Catholic Archbishop of Washington v. Sebelius, No. 1: 12-cv-00815(D. D.C. filed May 21, 2012).6. See Amended Complaint, Belmont Abbey Coll. v. Sebelius, No. 1:11-cv-01989-JEB (D. D.C. filed Mar. 19, 2012).7. For a complete and updated listing of all of the HHS Mandate lawsuits, seehttp://www.becketfund.org/hhsinformationcentral/ (last visited Nov. 12, 2012).8. See Wheaton Coll. v. Sebelius, No. 12-5273 (D. D.C. filed July 18, 2012).2012 Constitutional Challenges: Religious Liberty and the HHS Mandatethe drugs and devices that cause early abortions."9 So there's some varietyin the plaintiffs. Some of those plaintiffs are nonprofit organizations,501(c)(3)s like Catholic University of America.Some of them are for-profit organizations, essentially religious individualswho are in business and the businesses that they've started who say: Justbecause I went out to earn money doesn't mean I should give up my right tonot be forced to violate my religious beliefs.'oA handful of those cases so far have been dismissed by the federal courtsas premature. I think it's three out of the thirty have been dismissed aspremature, with essentially the courts saying: You're a little bit too early,come back to us a little bit later from now.'ITwo of them have had merits decisions; one going each way, so for themoment, we're still very early in the process.12I want to flag two issues for brief discussion. One is the accommodationthat the president announced at his press conference last February, and Iwant to briefly talk about that and explain why I don't think it is sufficient.Second, I want to explain what, to me, is the long-term problem for thegovernment's case here, which is the total lack of a compelling interest tojustify this type of mandate.First, the accommodation, if you recall back last February when there wasa lot of media focus on the mandate, there were several announcements, and9. Id. There is no dispute that the class of "FDA approved contraceptive methods"includes some drugs and devices that interfere with implantation of an already-fertilizedhuman embryo. See, e.g., Kelly Wallace, Health and Human Services SecretaryKathleen Sebelius Tells iVillage "Historic" New Guidelines Cover Contraception, NotAbortion, iVillage.com (Aug. 2, 2011, 4:54 PM), http://www.ivillage.com/kathleen-sebelius-guidelines-cover-contraception-not-abortion/4-a-369771 (quoting SecretarySebelius: "These covered prescription drugs are specifically those that are designed toprevent implantation.").10. See e.g., Hobby Lobby v. Sebelius, No. 5:12-cv-01000-HE (W.D. Okla. filedSept. 12, 2012).11. See Belmont Abbey College v. Sebelius, No. 1:1 1-cv-01989-JEB (D. D.C. Nov.10, 2012); Wheaton College v. Sebelius, No. 12-5273 (D. D.C. filed July 18, 2012);Nebraska v. U.S. Dep't of Health and Human Servs. No. 4:12-cv-03035 (D. Neb. filedFeb. 23, 2012).12. See Newland v. Sebelius, No. 1:12-CV-123-JLK, 2012 WL 3069154 (D. Colo.July 27, 2012); O'Brien v. U.S. Dep't of Health & Human Servs., 4:12-CV-476 CEJ,2012 WL 4481208 (E.D. Mo. Sept. 28, 2012).34 The Journal of Contemporary Health Law and Policy Vol. XXIX: 1there was a big Friday afternoon press conference with the president, and thepresident claimed to be resolving the dispute by offering an accommodation.And the announced accommodation went something like this:We will not force the Catholic University of America to include the drugsthat cause the early abortions and the sterilization and so forth in itsinsurance policy. However, we will say that as soon as Catholic Universitygives that insurance policy to somebody that will automatically create a rightto receive those exact services from that exact insurance company to thatexact employee. So it wouldn't be written in there. The claim is you don'tactually have to provide it, we're just going to make it happen by law, andeven better than that, you don't have to pay for it because we're going toturn to the insurer and say: Insurer, you pay for it.That was the announced accommodation.A couple things that I think ultimately won't fly about thataccommodation. One is it's not the law. So it was announced at a pressconference, but that afternoon the government, in the federal register, simplyfinalized the old rule that everyone had been complaining about, so there isno new rule that establishes that accommodation. 3 That accommodationlives right now as simply a proposal at a press conference.Secondly, the government has issued an advance notice of proposedrulemaking which basically says:Hey, everybody, tell me your thoughts about how we might get out of thisproblem and solve the religious liberty problem we have here, and what thegovernment says is that that document solicits questions and ideas for howthey might solve the problem.14 But so far, they've come forward with noactual notice of a proposed rule at all.For some employers and some insurance providers, I think it's possiblethat the accommodation, if it actually becomes the law, could solve theproblem. In other words, for some religious objectors, I think it's entirelypossible that as understood by their views and their faith and their religionthey would say:Okay. At this point I'm far enough removed that I'm not actuallyfacilitating access to the drugs that cause early abortions or the devices thatdo that and so forth, and therefore, it's not a burden on my religion. And tothe extent there are folks in that category, I think the accommodation's a13. See 77 Fed. Reg. 8,725, 8,729 (Feb. 15, 2012) (to be codified at 45 C.F.R. pt.147) (adopting original narrow definition of religious employer as a final rule, withoutchange).14. See Certain Preventive Services Under the Affordable Care Act, 77 Fed. Reg.16,501 (Mar. 21, 2012) (to be codified at 45 C.F.R. pt. 147).2012 Constitutional Challenges: Religious Liberty and the HHS Mandategood thing for them, and I assume if any of them have filed lawsuits, thenonce that happens, they'll walk away from their lawsuits.But I think for the vast majority of people who objected to the law, theproposed accommodation isn't good enough because it ultimately still leavesthe employer in the position of facilitating access to the drugs. In otherwords, under the proposed accommodation, it is CUA's or anyone else's-and I don't represent CUA, just to be clear-it is any religious employer'schoice to provide insurance, selection of the insurance provider, andconnection of the insurance provider with the employee, which triggers theright to get all these drugs for free.15So ultimately, I think for many religious objectors, the proposedaccommodation doesn't solve the problem because it still leaves themcomplicit in facilitating the flow of the drugs.The second point I'd like to make is about the government's compellinginterest problem. I'd like to briefly start with a normative point, which is ina free and diverse and pluralistic country, it ought to be the general rule thatthe government shouldn't force people to violate their religious beliefsabsent some compelling interest. I think that that's a general statement of arule that I think most people recognize and that people that have differentreligious beliefs should be able to agree to. Unless there's a real seriousneed to do it, the government shouldn't be in the business of forcing peopleto violate their religion.Now, after the Supreme Court's decision in Smith, that is not the standardfor the free exercise clause.16 The Congress enacted a statute called theReligious Freedom Restoration Act in 1993 sponsored by Ted Kennedy,signed by Bill Clinton, which established the compelling interest test as thestandard.' 7 I think as the cases move on, what we will see is exactly whatthe judge in Colorado found in the Hercules case on the mandate, which isthat the government has an exceedingly weak claim of a compelling interestin forcing religious objectors to provide access to the drugs, and that's for acouple of reasons.' 815. Roman Catholic Archbishop of Wash. v. Sebelius, No. 1:12-cv-00815, 27 (D.D.C. filed May 21, 2012).16. Emp't Div., Dept. of Human Res. of Or. v. Smith, 494 U.S. 872 (1990).17. See 42 U.S.C. § 2000bb (2006).18. See Newland v. Sebelius, No. 1:12-CV-1123-JLK, 2012 WL 3069154, at *9 (D.Colo. July 27, 2012).56 The Journal of Contemporary Health Law and Policy Vol. XXIX: 1First, the government can and does provide these drugs to millions ofpeople every year directly without forcing unwilling people to be involved.They do that through Title X. They do that in every state in the union, theydo it all across the country for millions of people.19Secondly, the government, with the mandate, has actually exemptedhundreds of millions - plans that cover hundreds of millions of people.There's a grandfathering exception. In other words, if your plan is oldenough, you don't have to comply with the mandate.20 There's anexemption for some religious employers. They don't have to comply withthe mandate. 2 1 The idea that the government will eventually be able toconvince the courts that even though they've exempted hundreds of millionsof-plans that cover hundreds of millions of people over here, they reallyhave a compelling interest in making this group of people provide the drug isa stretch. I don't think they can do it.I'll stop there, but I beg somebody to ask me a question about for profitemployers later so that I can get into why they too have religious freedomrights. Thank you.19. See U.S. Dep't of Health and Human Servs., Title X Family Planning,http://www.hhs.gov/opa/title-x-family-planning/ (last visited Nov. 12, 2012).20. See 45 C.F.R. § 147.140(a)(1)(i) (2010); 26 C.F.R. § 54.9815-1251T(a)(1)(i)(2010); 29 C.F.R. § 2590.715-1251(a)(1)(i) (2010). HHS has predicted thata majority of large employers, employing more than 50 million Americans, will continueto use grandfathered plans through at least 2014 and that a third of small employers withbetween 50 and 100 employees may do likewise. Healthcare.gov, Keeping the HealthPlan You Have: The Affordable Care Act and "Grandfathered" Health Plans (June 14,2010), http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html.21. See, e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i)-(ii) (Supp. 2010) (individual mandatedoes not apply to members of "recognized religious sect or division" that conscientiouslyobjects to acceptance of public or private insurance funds); 26 U.S.C.§ 5000A(d)(2)(b)(ii) (Supp. 2010) (individual mandate does not apply to members of"health care sharing ministry" that meets certain criteria).

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Constitutional Challenges: Religious Liberty and the HHS Mandate

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