DC Circuit's Nina Pillard Writes Ruling Upholding ACA Contraception Coverage

A three-judge panel of the D.C. Circuit today upheld the contraception coverage requirement of the Affordable Care Act as it applies to religious nonprofits. The unanimous opinion in Priests For Life v. HHS was written by Obama nominee Nina Pillard.

Like in Hobby Lobby, the attack was based on the Religious Freedom Restoration Act (RFRA), under which any law imposing a substantial burden on religious exercise can be sustained only if it is the least restrictive means of achieving a compelling government purpose. But unlike Hobby Lobby, this case involves religious nonprofits rather than for-profit corporations. The law does not exclude the employees of religious nonprofits from its protection, but it does allow an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even the accommodation violates their religious liberty.

In contrast to Justice Alito and his far right colleagues in Hobby Lobby, Pillard devotes significant attention to why the ACA contraception coverage requirement is so vitally important. She writes:

The contraceptive coverage requirement derives from the ACA's prioritization of preventive care, and from Congress' recognition that such care has often been modeled on men's health needs and thus left women underinsured. As discussed below, Congress included the Women's Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.

She then explains how the regulations don't impose a substantial burden on the employers' religious exercise. They have no role whatsoever in the provision of contraception that they oppose. In addition, it isn't the employer's use of the accommodation that triggers the women's right to coverage; their right was triggered by Congress when it passed the ACA. Pillard gets to the nub of this effort to use religious liberty as a sword to diminish the rights of others:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

This will not be the last word on the matter. The same issue is being heard in other courts around the country, and the final disposition will almost certainly be by the Supreme Court.

PFAW Foundation

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Ominous Sign from the Roberts Court on ACA Subsidies

The Supreme Court announced today that it will consider the appeal of a case that was designed by activists to take a wrecking ball to the Affordable Care Act. Since only one circuit has made a final ruling on the issue (a unanimous decision rejecting the ACA opponents' legally weak, transparently political argument), there is no split among circuit courts requiring resolution. In addition, the issue has yet to be decided by three additional circuits that have similar cases pending. So today's action begs the question: Why does the Roberts Court want to hear this case, and why now?

PFAW Foundation's Supreme Court 2014-2015 Term Preview discussed the possibility that the Court would address this issue. As we wrote then:

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law's opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," noting that "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble." The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit's.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

The D.C. Circuit case remains pending: Oral arguments won't even be held until mid-December. The Tenth Circuit won't hear oral arguments until next year, and the Seventh Circuit case is still at the district court level. If the Court had waited for a possible circuit split to take the case, it would not have been heard until the term ending in July of 2016. But at least four Justices (the number it takes to grant a certiorari petition) are apparently unwilling to wait.

Their hunger to hear this case is ominous.

PFAW Foundation

House Lawsuit Against Obama Undermined by Congressional Research Service Report

Although House Republicans managed to keep it a secret until now, their transparently political lawsuit against the president was found to be baseless in early September by the nonpartisan Congressional Research Service. Part of the Library of Congress, the CRS provides neutral legal and policy research and analysis to Congress, including committees and individual members. The Constitutional Accountability Center's Simon Lazarus and Elisabeth Stein got a copy of the September 4 CRS report, and it may explain why the lawsuit, though loudly trumpeted, has not actually been filed.

In an article entitled The Congressional Research Service Finds that Boehner's Lawsuit Has No Legal Basis, Lazarus and Stein write:

Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. … [The] report actually targets a single instance of alleged agency delay and exercise of enforcement discretion - the Obama Administration's adjustments of effective dates for the Affordable Care Act's so-called employer mandate to offer employees ACA-complaint health insurance or pay a tax. This delay happens to be the basis - the sole basis - for the legal action against the President that Boehner outlined in July. Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report's bottom line is clear: not merely are the legal underpinnings of the Republicans' planned lawsuit weak; the report turns up no legal basis - no "there" there - at all.

So who in Congress requested this analysis of the CRS?

CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report - of which House Democrats were unaware until it appeared - bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers' maxim not to ask a question when unsure of the likely answer.

The Republicans came up with the lawsuit gimmick as a sop to their base, who regularly characterize President Obama as a lawless dictator. It is typical of the irresponsible behavior we have seen from the House since the 2010 election.

And this is the party that wants to take over the Senate in next week's elections.

PFAW

Fourth Circuit Unanimously Upholds Obamacare Subsidies

In stark contrast to this morning's split DC Circuit ruling, a unanimous panel of the Fourth Circuit today upheld the ACA's subsidies for Americans buying health insurance on federally-created exchanges. Judge Andre Davis (an Obama nominee) wrote a powerful concurring opinion blasting the illogical premise and blatantly political nature of the lawsuit:

Appellants' approach would effectively destroy the statute by promulgating a new rule that makes premium tax credits unavailable to consumers who purchased health coverage on federal Exchanges. But of course, as their counsel largely conceded at oral argument, that is their not so transparent purpose.

Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right to decline to do so. They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. (internal citations removed)

Ouch.

PFAW Foundation

D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

A divided panel of the D.C. Circuit this morning struck down a key provision of the Affordable Care Act that allows subsidies for millions of people purchasing health insurance on government-run exchanges. The case is one of four cases on the same issue, strategically planted in various places around the country (Washington DC, Virginia, Oklahoma, and Indiana). The intent is apparently to get a split in circuit court opinions, so the Supreme Court will be more likely to take the case and, the proponents hope, deliver a crippling blow to Obamacare. (Unlike the millions of Americans who would be the real victims if this scheme succeeds, its proponents presumably have access to health insurance.) Today's ruling is the first among the four circuits.

Opponents of healthcare have an argument that might look appealing on the surface but doesn't pass the smell test. Section 1311 of the ACA says states should set up insurance exchanges. Section 1321 of the Act says the federal government can set one up if a state doesn't. The statute also says how to calculate the amount of a subsidy available for less well-off people getting health insurance through an exchange. It's based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. It's on the "by the state" language that the ACA's opponents hang their hat.

The anti-ACA people say the text is clear: The subsidy is unavailable to those who are getting their insurance in states where the federal government has set up the exchange. Judge Thomas Griffith and Senior Judge Raymond Randolph (nominated by Bush-43 and Bush-41, respectively) grabbed on to this argument, striking down subsidies for Americans living in states where politicians have chosen not to set up their own state exchanges.

Senior Judge Harry Edwards (a Carter nominee) dissented, pointing out that this was clearly not the intent of Congress. He explained the case quite plainly:

This case is about Appellants' not-so-veiled attempt to gut the Patient Protection and Affordable Care Act ("ACA").

...

Appellants' proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants' amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, "the structure of the ACA will crumble." It is inconceivable that Congress intended to give States the power to cause the ACA to "crumble." [emphasis added, internal citation removed]

Judge Edwards continues, shattering the majority's argument that their interpretation fits with congressional intent:

Apparently recognizing the weakness of a claim that rests solely on [one particular section of the Affordable Care Act], divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges [rather than federal ones] to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange. Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf.

The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS's and HHS's permissible constructions of the ACA, and issues a judgment that portends disastrous consequences.

Those disastrous consequences are not the intent of Congress, but they are the intent of far right zealots.

The Justice Department has already said it will seek an en banc review by all eleven judges of the D.C. Circuit, where President Obama's opponents have less likelihood of winning than would have been the case a year ago. In case you were wondering why Senate Republicans pulled out all the stops last year and declared they would not allow President Obama to fill any of the three then-existing vacancies on the D.C. Circuit, cases like this are why. The last thing they wanted was a balanced, non-ideological court.

For anyone who cares about healthcare, courts matter.

PFAW

Jamie Raskin Discusses Hobby Lobby and Corporate Religion

Thursday afternoon, PFAW hosted a special member telebriefing on Sebelius v. Hobby Lobby Stores, Inc., a critically important case being argued before the Supreme Court next week that represents the overlap of two important issues: attacks on women's health, and the radical expansion of constitutional "rights" for artificial and increasingly powerful for-profit corporations.. The briefing featured senior fellow Jamie Raskin, who is a respected constitutional scholar at American University and a leading progressive Maryland state senator. Jamie previewed a new report from our affiliate PFAW Foundation: The Gospel of Citizens United: In Hobby Lobby, Corporations Pray for the Right to Deny Workers Contraception.

In Hobby Lobby and a companion case, the Affordable Care Act's contraception provision is being challenged by for-profit corporations regulated by the Act, as well as by the individuals who own the companies. One of the astonishing facets of this case is that for-profit corporations are actually arguing that they – the corporations themselves, totally separate from their owners – have religious liberty rights that are protected by law.

How did we get to a point where for-profit corporations are claiming religious beliefs and rights and not being laughed out of court? Jamie described how Citizens United was a watershed, completely transforming our constitutional jurisprudence and opening the door to Hobby Lobby's arguments. He noted the Tenth Circuit's conclusion that since corporations have First Amendment political speech rights, it follows that they also have religious rights.

Jamie pointed out that no court has ever found that ordinary for-profit corporations have religious rights. And that's what Hobby Lobby is: a profit-making corporation operating more than 500 arts-and-crafts stores with more than 13,000 employees. Quoting Justice Stevens' dissent in Citizens United, Jamie pointed out that "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." Yet just as that case empowered corporate CEOs to use the corporation's treasury to affect elections, Hobby Lobby threatens to empower corporate officials to impose their own religious beliefs on company employees. In both cases, the power of ordinary people is diminished, as they become more and more subject to the power of corporations.

Jamie also discussed how the implications of Hobby Lobby go far beyond this particular case. If corporations are "ensouled" and found to have religious liberty rights, it opens the door to letting them opt out of anti-discrimination and labor laws their owners don't like. And while Hobby Lobby is a family-owned company where the family ascribes their religion to the corporation, how would you determine the "religion" of a widely-held company like Exxon? Jamie pointed out that the law sees both – the family owned business and the large multinational corporation -- the same.

What can regular people do about all this? PFAW Vice President Marge Baker pointed out that most people don't even know about the dangerous power grab by corporations that the five far-right Supreme Court justices are assisting. It's important to educate our friends, colleagues, and family members about how frequently and dangerously the Supreme Court is bending the law in order to hand power to already-powerful large corporations. And elections matter, because the judges who make these decisions on the Supreme Court and every federal court in the nation are nominated by the president and confirmed by the Senate. With control of the Senate at stake in this year's elections, the results this November will have an enormous impact on the courts.

PFAW

Defining Religious Liberty: Little Sisters' Little Victory

Among the many court cases challenging contraception requirements under the Affordable Care Act, the case involving the Little Sisters of the Poor has been, and continues to be, a strange one. The latest wrinkle came on Friday in what SCOTUSblog’s Lyle Denniston calls a “partial win” for the order of nuns.

The Little Sisters, represented by the Becket Fund for Religious Liberty, appealed to the Supreme Court to prevent the group from having to sign a form documenting its religious objection to providing contraception coverage while its broader challenge to the law moves through the courts. The Tenth Circuit had rejected a similar request.

Under the Obama administration’s accommodation for religious groups, that form would exempt the organization from providing or paying for contraception coverage, and that responsibility would pass to the group’s insurer. In a brief to the Supreme Court, the Solicitor General’s office said that by Becket’s reasoning, a Quaker couldn’t be required to attest to his religious objections before being absolved of military obligations. But Becket insisted that the form acted as a “permission slip” that would trigger contraception coverage, and that would make the nuns complicit.

What makes this argument even stranger is the fact that the Little Sisters’ insurer is classified as a “church plan,” which is exempt from enforcement of the ACA requirement. So whether or not the Little Sisters signed the form, their lay employees would still not have access to coverage.

On Friday, the Supreme Court granted the Little Sisters’ request for an injunction, with a proviso. The group did not have to sign the government’s religious objection form, but it did have to notify the Department of Health and Human Services of its religious objections by letter. The Becket Fund declared victory and announced itself “delighted” by the Court’s compromise.

So, to recap: requiring a religious organization to sign a form opting out of providing contraception coverage is religious tyranny, but requiring a religious organization to send a letter to HHS stating its objections to providing contraception coverage is a victory for religious freedom.

Just wait until the Supreme Court hears the more far-reaching Hobby Lobby case, in which Becket and its client seek to establish the principle that for-profit companies can opt out of laws protecting their employees if those laws conflict with the religious beliefs of the corporation’s owners.

 

PFAW Foundation

Supreme Court to Hear Challenges to ACA's Contraception Coverage

To no one's surprise, the Supreme Court announced today that it will be deciding the legality of the ACA's provision regarding insurance coverage for contraception, which opponents claim violates the religious liberty of for-profit corporations and their owners. The Court will be hearing two cases together: Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. We will be hearing and reading a lot about these cases in the next few months.

At issue is whether the law violates the Religious Freedom Restoration Act or the Free Exercise Clause of the First Amendment. Under RFRA, a federal law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest. (This law was passed in 1993 to recreate the substantial scrutiny laws had faced under the Free Exercise Clause until the Supreme Court altered the test in 1990.)

Hobby Lobby is an arts and crafts chain store with 500 stores and 13,000 full-time employees. The Green family who own and operate Hobby Lobby also do business through a corporation called Mardel, a for-profit business operating 35 Christian bookstores with almost 400 employees. The Greens and their corporations argue that the contraception coverage provision poses a substantial burden on their religious liberty in violation of RFRA.

Perhaps the most dramatic claim made in these cases is that for-profit corporations operating hundreds of stores and with thousands of employees have religious liberty interests at all. That's what the Tenth Circuit ruled in the Hobby Lobby case, citing Citizens United, and concluding that the mandate fails under RFRA.

The claim that for-profit corporations have religious rights was rejected by the Third Circuit in the Conestoga Wood Specialties case. That court also ruled that the corporation's family owners don't suffer a religious liberty violation because the law's coverage requirement and the financial penalty for noncompliance fall not upon them as individuals, but upon the corporation. According to the lower court, since they chose to engage in business using the corporate form, accepting all the financial benefits that brings, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

It now appears that the Supreme Court will make important rulings on the religious liberty interests of both for-profit businesses and the individuals who own them.

People can and do disagree on the interplay between individuals' religious liberty and general laws that go against people's religious beliefs. PFAW Foundation's "Twelve Rules for Mixing Religion and Politics" addresses this debate. Government does have the right to demand people and businesses comply with reasonable regulation and social policy, while at the same time, religious liberty is a key constitutional right. The debate over their interplay should be held in a way that does not devolve into claims of a "war against religion," which we hear all too often from the far right.

As far as corporate religion is concerned, the five arch-conservative justices who gave us Citizens United and who routinely bend the law to favor corporate interests may see this as an opportunity to strike another blow for "corporate personhood" and against the workers who the ACA is designed to protect.

PFAW Foundation

New DC Circuit Decision Shows Why GOP Wants to Block New Judges

A three-judge panel of the Court of Appeals for the D.C. Circuit issued a divided ruling today that the Affordable Care Act's contraception coverage provision violates the religious liberty of two business owners. The majority ruling came from far-right Bush-43 nominee Janice Rogers Brown, and she was joined by Bush-41 senior judge Raymond Randolph.

Judge Brown opened her opinion with starkly political language more appropriate to a Republican convention than a judicial opinion:

Two years after our decision Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011), we are asked to revisit the behemoth known as the Affordable Care Act. ... [We] must determine whether the contraceptive mandate imposed by the Act trammels the right of free exercise [of religion] ... [emphasis added]

With politically charged language like that, it was no surprise what her conclusion would be.

The case concerned the two Gilardi brothers and the Freshway corporations they own, a produce and trucking operation that employs about 400 people. The Gilardi brothers and their two corporations sued the Obama administration, contending that their religious liberties were violated by the administration's mandate that insurance plans provide women with contraception coverage without copay.

Judges Brown and Randolph rejected the claim that the Freshway corporations have a religious liberty right that can be violated, since they are not people. But they also ruled that the contraception coverage provision violates the brothers' rights under the federal Religious Freedom Restoration Act. Under RFRA, a law is invalid if it imposes a substantial burden on religious liberty, unless it is the least restrictive means to serve a compelling government interest.

The D.C. Circuit panel's majority ruled that the law fails in every respect. On the question of whether it imposes a substantial burden, Brown and Randolph concluded that the law forces the company's owners to "approve and endorse" the inclusion of contraceptive coverage in their companies' employer-provided plans, despite their religious objections to contraception. (It is not clear how obeying a law is the same as approving and endorsing it.) And they concluded that the interests underlying the contraception provision are not compelling – that is, that the government does not have a strong enough reason to ensure that women have access to affordable contraception.

The dissenting was Judge Harry Edwards, a Carter nominee and the only one of the court's six senior judges not put on the bench by a Republican president. He explained:

There are three reasons why the Mandate does not substantially burden the Gilardis' "exercise of religion." First, the Mandate does not require the Gilardis to use or purchase contraception themselves. Second, the Mandate does not require the Gilardis to encourage Freshway's employees to use contraceptives any more directly than they do by authorizing Freshway to pay wages. Finally, the Gilardis remain free to express publicly their disapproval of contraceptive products. [emphasis in original]

He also recognized that protecting women's health is a compelling government interest.

Yesterday, Senate Republicans made clear their determination to prevent President Obama from filling the three vacancies on the court, filibustering the first nominee just as they had signaled they would do even before they knew who the president's three nominees would be. Today's opinion exemplified why. Including senior judges, who can serve on panels like the one making today's decision, Republican-nominated judges on the D.C. Circuit outnumber Democratic-nominated ones 9-5. And with Republicans having made a deliberate effort over the years to appoint conservative ideologues to the bench, a three-judge panel is more likely than not to have at least two staunch conservatives.

Just a couple of weeks ago, we saw Republicans shut down the government and threaten to destroy the nation's economy is the president did not adopt their policies. Similarly, since President Obama isn't nominating the people that a President Romney would have chosen for the D.C. Circuit, Senate Republicans have taken it upon themselves to limit the size of the court and keep a Democratic president from filling the three vacancies.

That is why it is so important to defeat the GOP effort to filibuster the president's nominees. For them, "elections matter" only when they win.

PFAW