The blog in a nutshell

The blog in a nutshell

Thursday, March 24, 2016

A right you don't have can't get hijacked

So in the Zubik (contraceptive cases) oral argument, the idea that signing a form was a substantial burden did not appear to get far.  Yet, it looked like the objectors are going to get 4 votes.  As smart commentators explained, the reason is because the conservative Justices appear to accept that the substantial burden is having their plans "hijacked" by the government.

This is wrong.  This is just another way of saying that the government is preventing them from imposing their religion on others by contract.  Let me explain.

First, as Justice Breyer pointed out at oral argument, the plan "infrastructure" that is allegedly getting hijacked belongs to the insurer.  This seems like a pretty debatable and abstract point, but what it means is that the insurance cards, the management team, the paperwork, etc. - everything that is used to make sure you don't have to pay for your doctor's visit - is all the property of the insurer or the third-party administrator.  The only thing the insured or self-insured does is write checks, and the system is set up so that none of the checks go to pay for contraceptive care.

Still, I think a hypothetical here will color the point, and explain what is really going on.  

Religious University is a (fictional) catholic school that has a sincere religious belief that contraception use is immoral.  They contract with TPA Insurance to be either their insurer or their third-party administrator - for this purpose, it doesn't really matter which.  But what are they actually contracting for?

They're contracting with TPA to provide, in return for money, certain coverage.  They want TPA to cover things like wellness visits, cancer, flu shots, and pregnancy (well, the type that ends in a healthy baby, anyway).  But not included in this coverage is contraception coverage.  Fine.

So the TPA, as the contractee/agent. provides these services.  But they also like their customers, so they give out a $5 Starbucks gift card.  The Starbucks card isn't part of the coverage provided by Religious University, it's just an add-on that the TPA is providing at no cost to Religious U.*

Okay, so they aren't $5 Starbucks gift cards.  Instead, the free gift is contraceptive care.  Religious University objects!  This is outrageous!  We're a Catholic institution, and we don't support contraception.  But TPA isn't a Catholic institution, and it is TPA that is giving away the contraception.  Of course, Religious University could contract with TPA ex ante to make them forebear from giving away contraceptive care.  But that doesn't change the nature of who was giving the contraceptive care in the first place.  And what such a contract would be is the imposition of Religious University's beliefs on TPA by contract.  Now, there's nothing wrong with that in the abstract.  But as the Laycock brief explained, RFRA simply does not go that far.  And when the Supreme Court talk about "hijacking a plan," that's really what they are talking about.  Take it away, Professor:

The regulations in these cases do not substantially burden petitioners’ religious exercise. Petitioners have been wholly exempted from providing contraception themselves. They object to the government delivering contraception separately, with segregated funds and segregated communications, through petitioners’ secular insurers.  
Petitioners’ briefs make clear that they would object even if they were wholly unregulated. Suppose government repealed all regulation of employers, and required only that insurers and third-party administrators of employer-sponsored plans provide contraception separately from those plans. These petitioners would say that this regulation of their secular insurers substantially burdened the religious exercise of insuring their employees.  
Petitioners’ objection is not saved by saying that they cannot provide contact information for their insurers, or that they cannot contract with insurers that provide contraception. No matter how they phrase it, they are objecting to the government’s regulation of their secular insurers. This case is ultimately like Bowen v. Roy: government need not conform its own affairs—whether insurance regulation or record keeping—to petitioners’ religious understandings. 

One other thing.  What Religious University is objecting to here is TPA's not acting in an appropriate Catholic manner, by giving away contraception care (as mandated by the ACA, to be sure).  But Religious University is not objecting to the TPA not acting completely in accord with Religious University's tenets.  Religious University also has a RFRA-based anti-discrimination exception (let's say) to hire only co-religionists.  Religious University doesn't make their employees work on Sundays.  And yet, something tells me, they don't require their "plan" to be solely worked on by fellow Catholics.  They're okay if TPA has employees working to support the "plan" on Sunday.  

I don't doubt the hypothetical Religious University, or any of the actual objectors in these cases, have a sincere religious conviction that contraception care is immoral.  But I don't think they are being sincere in that the objection is merely to the contraception being furnished by a party they have a contractual relationship with.  Rather, they object to their employees getting health care.  And they're defining that strategically, in order to make it as hard as possible for their employees to get that health care.  Liberals with their pluralism and conservatives with their support of religion should get behind the basic concept of reasonable opt-outs of generally-applicable laws.  But when RFRA is gamed like this, it destroys the broad support for RFRA and imperils its continued existence.

* If Religious U. was Mormon, would they have a right to object?  Absent government regulation, I'm sure they could put that in a contract:  no Starbucks gift cards.  But, as this post explains, the question is whether RFRA would permit a law banning such a contract.  (UPDATE:  To clarify, Mormons do not drink coffee.)


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  2. The last two sentences to me is telling.

    Liberals support religion too, I would add, but generally of the religious diversity type. The employees here are often religious and have religions reasons, e.g., to avoid unwanted pregnancies without denying a basic means of "unity" (sex) with their partners.

    Insurance provides employees more of an ability to fully make religious based choices pursuant to their personal beliefs. They aren't "ministers" or something. Some cleaning lady at Religious U. shouldn't be burdened because they have the wrong religious beliefs.

    Liberals are tarred as anti-religion, but that's bogus, even if some are secular (as are some conservatives). They have a more "liberal protestant" view of religious freedom.

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