What Happens When The Executive Branch Tries To Make Law: The Evolution Of The Contraceptive Mandate And The “Accommodations” That Failed To Respect Protected Conscience Rights – Guest Essayist: Steven H. Aden
One Saturday morning a month, I take my eight-year-old son and my seven-year-old daughter to the neighborhood big-box hardware store for “Kid’s Craft Day.” They get an apron to wear and an assemble-it-yourself kit with instructions for building a flower pot rack or a wooden photo frame. For an hour, they get to pound nails, glue joints, and slap paint on a project that has no risks or liability attached to it. And while they’ll hopefully have the pride that comes from a solid job at the end, as every mom and dad there knows, this time together isn’t really about the finished product, but about learning the process of carefully following directions.
The nation’s biggest craft store, Hobby Lobby, and a Mennonite cabinet maker, Conestoga Wood Specialties, recently took Congress and the Executive Branch to school in the U.S. Supreme Court on the consequences of failing to follow the instructions the Constitution lays out for making solid laws. Their separate lawsuits against the federal government wound up there so the nine Justices could decide whether the U.S. Department of Health and Human Services had “faithfully executed” (Article II, § 3) the Affordable Care Act– or if the agency had actually violated the federal Religious Freedom Restoration Act’s requirement that the beliefs of religious persons must be respected in all federal programs.
At issue in these cases were HHS regulations drafted under the Affordable Care Act of 2010, popularly known as “Obamacare.” In that act, Congress generally requires employers with 50 or more full-time employees to offer group health insurance coverage that provides a minimum level of essential coverage. Heavy fines may be levied on an employer that fails to comply with the law’s coverage requirements, including “preventive care and screenings” for women to be provided at no cost to employees.
At this point, the legislative branch, in crafting this part of Obamacare, seems to have forgotten to refer back to Article 8, § 1 of the Constitution, which grants it not only specific enumerated powers to “provide for the general welfare,” but more particularly the authority to “make all laws which shall be necessary and proper for carrying into execution the[se] foregoing powers….” Congress didn’t “execute” well on this provision; it failed to specify what types of preventive care must be covered, instead passing that “important and sensitive decision,” as the Supreme Court characterized it in Hobby Lobby, into the hands of HHS’ Health Resources and Services Administration. HRSA in turn lateraled the ball to the Institute of Medicine, a private nonprofit group of volunteer advisers, to determine which preventive services to require.
Unfortunately for religious employers like Hobby Lobby, a closely held family business that devout Evangelicals own and run, and the Mennonite family that owns Conestoga Wood Specialties, HRSA took the institute’s recommendations and incorporated them into guidelines for women’s preventive care that mandated coverage for “[a]ll Food and Drug Administration approved contraceptive methods [and] sterilization procedures,” including methods these religious businesspersons believed could cause early abortions.
At this point, the audible play calling becomes hard to follow. HHS also authorized HRSA to exempt certain “religious employers” from the contraceptive mandate. HRSA didn’t trust itself to get the medicine of Obamacare right, but for some reason it did feel quite competent enough to get religion right. As long as it was passing the ball around, it might have brought in the U.S. Conference of Catholic Bishops or the National Association of Evangelicals to help it decide how “religious” was religious enough for the exemption. Instead, it plowed forward and enacted a rule that departed from a consistent historical practice of granting expansive statutory religious accommodations by exempting only the narrowest possible category of employers – “churches, their integrated auxiliaries, and conventions or associations of churches,” and “religious order[s].”
After considerable pushback from religious charities and schools, HHS audibled again, establishing an “accommodation” for religious nonprofits under which an organization could self-certify that it opposes providing coverage for particular contraceptive services, upon receipt of which its insurance company must exclude contraceptive coverage from coverage but provide separate payments directly to employees for contraceptive services.
What followed was a landslide of federal lawsuits perhaps unprecedented in modern legal history, all alleging that HHS’ rule was trampling on the religious conscience of individuals, corporations, and organizations in violation of the Free Exercise Clause of the First Amendment and the federal Religious Freedom Restoration Act. The more than 400 litigants included Roman Catholic dioceses, Catholic and Evangelical-owned for-profit businesses, faith-based ministries representing a broad range of ecclesiastical and ecumenical viewpoints, private religious colleges, and individuals. Ultimately, the rights of many of these hundreds of claimants were represented in the Supreme Court by Hobby Lobby and Conestoga Wood Specialties.
The Supreme Court held that HHS’s failure to respect the religious beliefs of for-profit employers violated RFRA. Justice Samuel Alito, writing for the majority, turned back the Obama administration’s argument that it could not grant a broader exemption to religious employers because to do so would undermine its goal of providing free contraception to women. The ACA exempts “a great many employers” from its requirements, he observed, and it “grandfathered” the insurance plans of many others, allowing them to retain the same coverage they had before the ACA. “All told, the contraceptive mandate ‘presently does not apply to tens of millions of people,’” the court pointed out.
Additionally, the government argument for uniformity “is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as [Hobby Lobby and Conestoga]. The connection between what these religious employers would be required to do if not exempted (provide insurance coverage for particular contraceptives) and the ultimate event that they find morally wrong (destruction of an embryo) is exactly the same,” the majority reasoned. In the final analysis, the Supreme Court hoisted HHS up on its own “accommodation” for non-profit employers; this move, it said, “has demonstrated that [HHS] has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”
Whether and to what extent the Supreme Court will also toss the non-profit “accommodation” rule as a violation of RFRA remains to be seen. The court may have already signaled its leanings on the matter by granting emergency injunctive relief from the contraceptive mandate to a charity run by nuns, Little Sisters of the Poor, and a diocese of the Catholic Church. Whatever the high court does, its Hobby Lobby ruling should serve as a warning to Congress and the Executive Branch to follow the blueprint the Constitution provides when drafting rules for religious accommodation.
Steven H. Aden has more than two decades of experience defending constitutionally protected freedoms. He serves as senior counsel with Alliance Defending Freedom in its Washington, D.C., office.
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