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A remarkable exchange took place recently during an oral argument in the United States Court of Appeals for the D.C. Circuit, where two cases challenging the contraceptive mandate provisions of the Affordable Care Act (ACA) were being heard. In both cases, Priests for Life v. Department of Health and Human Services and Roman Catholic Archbishop of Washington v. Sebelius, religious, nonprofit employers are challenging the ACA’s requirement that women employees receive contraceptive health care under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religion unless it has a compelling government interest applied using the least restrictive means. The plaintiffs’ lawyers argued that the court must defer to the religious employers’ claim that their religion is substantially burdened, even if the employers are wrong on the facts.
The judges were considering what role courts play in determining whether religious believers are “substantially burdened” as RFRA requires. Judge Judith Rogers used the facts from a famous First Amendment case, Thomas v. Review Board of the Indiana Employment Security Division, to focus the inquiry. In the real case, Thomas, a Jehovah’s Witness, worked for a company that fabricated sheet steel for a variety of industrial uses, and objected to working on the production of weapons, but not other uses of steel. Judge Rogers asked Priests for Life’s lawyer, Robert Muise, about a hypothetical Thomas who sincerely, but incorrectly, believed that his employer produced weapons. In that scenario, the judge asked:
Would it have been open to the Court to have found that in fact, as a matter of fact, the munitions factory for which it worked was not supplying arms for the war, that in fact it was supplying gadgets for tractors used on farms? Could the Court have examined whether his statement about what his employer was doing was correct? . . . My hypothetical is, he sincerely [but incorrectly] believes that these gadgets which are provided for tractors, produce food, [are] sent to troops. Could the court look at what the factory says it’s doing?
Muise responded that the court could not undertake such an analysis: “Even if the religious belief is based on a factual error, the court must accept that factual error,” he argued. The archbishop’s attorney, Noel Francisco, responded similarly, arguing that even if a religious believer has completely irrational beliefs, if he believes his religion was substantially burdened, the court could not question that conclusion.
Both lawyers insisted that their position was not problematic, because, after a substantial burden is found, courts can still apply strict scrutiny and rule against the plaintiffs. The problem with that argument, of course, is that it subjects every single federal law to strict scrutiny whenever a plaintiff asserts—irrationally–he is substantially burdened.
The specific problem with the plaintiffs’ standard is evident in the facts of these two cases. These cases differ from the Hobby Lobby and Conestoga Wood cases that are currently before the U.S. Supreme Court, which involve secular, for-profit businesses owned by religious believers. Instead, after the implementation of the ACA began, the Obama administration offered an accommodation to religious employers like Priests for Life and the Archbishop of Washington who oppose contraception. Instead of requiring the religious employers to provide the contraceptive coverage in their own health plans, the employers are allowed to sign a form that states their objection to contraception. Once the form is submitted, the employers no longer have any obligation to provide contraception. Instead, the insurance companies (usually referred to as third-party administrators, or TPAs) are required to contact the employees and offer them the mandated coverage.
Nonetheless, despite this accommodation, the religious employers are arguing in court that filling out the form substantially burdens their religious freedom. This claim appears nonsensical because for years these same employers told their insurance companies the same thing: don’t provide contraceptive coverage. Yet the religious plaintiffs insist that signing the form makes them morally complicit in their employees’ contraceptive use because their signatures trigger contraceptive coverage in a way that substantially burdens their religion. Because they believe that their signatures trigger contraception, they argue, the ACA cannot apply to them. Judge Rogers asked Mr. Muise about the facts of the trigger:
Judge Rogers: If in fact the accommodation is not the trigger for the coverage, must the court nevertheless accept the statement that it is the trigger for the objected-to coverage?
Mr. Muise: You must accept the fact that the actions that the government is requiring our plaintiffs to take make them complicit in an immoral act and violate their religious belief. That you have to accept and you can’t question that theological basis for it.
This response is troubling because we know, in fact, that the accommodation is not the trigger. A district court judge in Wyoming recently dismissed a similar lawsuit, Diocese of Cheyenne v. Sebelius, because the plaintiffs were wrong on the facts of how the accommodation really works. As Judge Skavdahl explained:
Plaintiffs contend the very act of completing the self-certification form authorizes and even obligates the TPA to provide the objectionable contraceptive coverage.
Plaintiffs are mistaken, though. The self-certification does not authorize or obligate the TPA to provide the objectionable contraceptive coverage, the ACA authorizes and obligates the TPA to arrange such coverage.
Judge Skavdahl quoted Seventh Circuit Judge Posner’s opinion in University of Notre Dame v. Sebelius, which made the same point:
Notre Dame treats this regulation as making its mailing the certification form to its third-party administrator the cause of the provision of contraceptive services to its employees, in violation of its religious beliefs. Not so . . . Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.
Thus, Judge Skavdahl, like Judge Posner, concluded, the religious plaintiffs’ argument was “inaccurate and unconvincing” and there was no substantial burden on their religion because the TPA, not the employer, has the burden to comply with the ACA.
This live-by-your-own facts standard has popped up in other contraception cases, where, for example, plaintiffs have argued that because they believe that a contraceptive causes abortion, the science of how contraception actually works is irrelevant to the court’s review.
The idea that all the federal laws can be challenged by any irrational belief is unprecedented. And that’s a fact.