Court deals blow to HHS mandate

Calling it “unlawful” under the Religious Freedom Restoration Act, a majority of the Supreme Court June 30 struck down a portion of the regulation (the HHS mandate) issued by the Department of Health and Human Services requiring employers to cover contraceptives, sterilizations and abortifacients. The court’s opinion is a major milestone in the saga of the mandate, which began in July 2011, but it is by no means the last word.

Some quick history: The new health care law contains a provision requiring some employers to provide women certain “preventive health care services” with no co-pay. HHS was authorized to issue the relevant regulation and required employers to provide “all FDA-approved” contraceptives. This category includes morning-after drugs and IUDs that, as HHS concedes, can act to destroy human embryos.

Objecting to the part of the mandate requiring insurance coverage of the potentially abortifacient drugs and devices, two for-profit corporations, Hobby Lobby and Conestoga Woods, claimed that the mandate violated the Religious Freedom Restoration Act (RFRA).

In order to win their cases, the corporations had to clear several hurdles.

First, it had to establish that the RFRA — a federal law protecting “persons” from federal laws that “substantially burden” their religious freedom — included for-profit corporations in its definition of “persons.”

Second, Hobby Lobby had to establish that its religious freedom was “substantially burdened.” On this point, HHS had proposed a frightening test: the government, not religious actors, gets to decide if citizens’ religious freedom is burdened. Because Hobby Lobby’s management was not forced to use abortifacient drugs, the government argued that their religious freedom was not burdened. The majority rejected this analysis’ root and branch, concluding that it was no business of the state’s to determine whether a person’s religious freedom was burdened or how substantially.

While the court did not establish a threshold level of scrutiny in this part of its opinion, it’s worth noting that it suggested that it could accept Hobby Lobby’s contentions about substantial burden because the matter of moral cooperation is a well-known question involving moral and religious analysis and is the subject of scholarly articles in the relevant fields.

Third, HHS had to show that its interests in imposing the mandate were “compelling” and that the mandate served its interests in a manner “least restrictive” of religious freedom. This is the part of the opinion most likely to come under close scrutiny, and it has tremendous significance for the claims made by the Little Sisters of the Poor and other nonprofits in outstanding mandate cases.

The majority concluded that it did not have to decide whether the state possessed a compelling interest because the state failed the “least restrictive means” test. It is worth noting, however, that the court accompanied the former conclusion with several paragraphs acknowledging the arguments on both sides of this question.

It pointed out that HHS had offered only broad defenses of the mandate (women’s health and public health) and allowed millions of exceptions from the mandate for smaller employers and “grandfathered” plans. At the same time, it recited women’s constitutional right of access to contraception and the HHS’ claims about the negative relationship between contraceptive cost and access

Justice Anthony Kennedy’s concurrence tried to interpret Justice Alito’s opinion as a substantive affirmation of the state’s compelling interest, but this does not accurately reflect Alito’s words. Alito’s opinion concluded that HHS had failed to demonstrate that it could not serve its stated goals by means less restrictive of religious freedom. The opinion thereafter suggested that either the government could pay for contraception directly or extend to for-profit corporations the same accommodation it was offering religious nonprofit institutions (i.e., for the insurer to provide the drugs and devices directly to employees).

Alito’s opinion explicitly declared that it wasn’t deciding in advance that this accommodation would be an acceptable least restrictive means for every religious employer, but Kennedy’s concurring opinion moved in the direction of suggesting it might be. The court was also careful to draw lines answering the “worst case scenarios” suggested by Justice Ruth Bader Ginsburg’s dissent. In short, the majority asserted that its decision was limited to the law at issue and did not extend to medical procedures generally (e.g., immunizations and blood transfusions). Furthermore, the majority forcefully stated that the decision was no barrier to requiring corporations to obey employment nondiscrimination respecting race, for example, given the strength of governmental interests in these.

Presently, the Little Sisters of the Poor, a religious order that provides care to the elderly poor, is before the 10th Circuit Court of Appeals seeking to vindicate its religious freedom rights not to comply with the mandate’s “accommodation.” The Hobby Lobby decision clearly indicates that the sisters will have no trouble defining themselves as “persons” protected by RFRA. It also appears that they should be able to declare themselves “substantially burdened” by the accommodation’s requirement that they cooperate in directing their insurer to provide the disputed coverage to their employees, although this is not perfectly certain.

Most in play are the court’s conclusions about whether or not the state has a compelling interest in assuring free contraception to women and girls insured by the Little Sisters and whether the accommodation is the least restrictive means of serving any such compelling interest.

Helen Alvaré is a law professor at George Mason University.