On Wednesday, a panel of the United States Court of Appeals for the Third Circuit upheld federal rules intended to ensure access to birth control, over a claim that employers who object to following those rules on religious groups should be exempt from them. With that, the Third Circuit became the fourth federal appeals court to reach a similar conclusion in a challenge brought by an employer who objects to some or all forms of birth control, despite concerns that the Supreme Court’s decision in Burwell v. Hobby Lobby would impede access to contraceptive care.
The Hobby Lobby opinion permitted an employer to ignore a version of the Obama Administration’s birth control rules, yet it also contained language suggesting that, with a slight tweak to those rules, access to contraceptive care could be restored. The rule in Hobby Lobby required employers to cover contraception in their employer-provided health plan. The tweaked version of the rule only requires employers with religious objections to birth control to send a form or a letter to the federal government saying that they wish to invoke an exemption to the rule, and informing the government “which company administers their health-insurance plan.” Once this occurs, the employer is freed from its obligation to comply with the law, and the government works separately with the insurance administrator to ensure that the objecting employer’s workers receive contraceptive coverage.
In Geneva College v. Secretary of Health and Human Services, however, several employers objected even to the tweaked version of the rule, claiming that it still rendered them “complicit” in a woman’s use of contraception because their act of informing the government that they wished to be exempt “triggers” a series of events that lead to someone receiving birth control.
The Third Circuit disagreed. Quoting a decision by the Seventh Circuit that reached a similar conclusion in a similar case, the court explained that “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” According to the court, the plaintiffs “real objection” isn’t to sending a form or letter to the federal government, it is to “what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the [plaintiffs] give notice of their objection.” Federal law, does not grant these plaintiffs “a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.”
So this decision is good news for women whose employers seek to deny them access to birth control. Nevertheless, there are three reasons why the ultimate outcome of this dispute between religious employers and the women who work for them remains uncertain.
The first reason is that the Supreme Court appeared to speak with two voices in the week it handed down Hobby Lobby. As the D.C. Circuit explained in its opinion upholding the tweaked version of the rules, the Supreme Court “stressed” in Hobby Lobby that this version “alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.’” Indeed, Justice Samuel Alito’s majority opinion in Hobby Lobby went even further in suggesting that the just-fill-out-a-form option struck the right balance between protecting religious liberty while ensuring compliance with the law. Filling out a form, according to Alito, “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”
Only four days after Hobby Lobby, however, the Supreme Court granted temporary relief to a religious college that objected to filling out the form because it believed that doing so would make it “complicit in the provision of contraceptive coverage.” In dissent, Justice Sonia Sotomayor accused the Court of moving the goal posts when it granted this temporary relief. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
The second caveat to the Third Circuit’s decision is that, while it accurately describes the purpose of the Religious Freedom Restoration Act (RFRA), the federal law that religious objectors rely upon in these cases, it misses a key line in the Hobby Lobby decision that attempts to rewrite much of RFRA’s history.
RFRA was enacted to restore American religious liberty law as it existed before Justice Antonin Scalia’s 1990 majority opinion in Employment Division v. Smith, which drastically cut back the scope of legal protections for people who raise religious objections to the law. As the Third Circuit notes, however, pre-Smith law did not give religious objectors unlimited license to ignore the law. Among other things, “[p]re-Smith free exercise cases, which RFRA was crafted to resurrect, have distinguished between what a challenged law requires the objecting parties to do, and what it permits another party—specifically, the government—to do.”
The problem with this portion of the Third Circuit’s analysis, however, is that, while it is an accurate description of what RFRA sought to accomplish and what the law said prior to Smith, it does not account for a line in Justice Alito’s Hobby Lobby opinion that undermines this analysis. In Hobby Lobby, Alito claims that an irrelevant 2000 amendment to RFRA was “an obvious effort to effect a complete separation from” pre-Smith law. Alito’s interpretation of that amendment is hard to square with the text of the law. Nevertheless, in a hierarchical judicial system, a false statement by the Supreme Court trumps a true statement by a federal appeals court.
Though this failure to account for a portion of Hobby Lobby is not fatal to the Third Circuit’s analysis, nor does it necessarily undercut decisions by other appeals courts that have ruled in favor of birth control, it does present a weak point in the opinion that other judges might cite to attack it.
The third caveat to the Third Circuit’s opinion — and probably the most significant one — is that it was decided by a panel made up entirely of Democratic appointees. The same is true of the D.C. Circuit’s decision siding with birth control, although Republicans did join two pre-Hobby Lobby decisions upholding the just-fill-out-the-form option.
It remains to be seen whether more GOP-friendly courts of appeals continue to side with access to birth control over the objections of bosses who disapprove of contraception.
(HT: Jessica Mason Pieklo)