The Plea of the Little Sisters

Richard Epstein*

Richard Epstein

Richard Epstein

This past week, the United States Supreme Court heard oral arguments in the highly contentious case of Zubik v. Burwell, which addresses the extent to which religious institutions, such as the Little Sisters of the Poor, are subject to the Affordable Care Act’s contraceptive mandate. The issue here is not a new one, for just two years ago in Burwell v. Hobby Lobby, the Supreme Courtcorrectly held, by a 5 to 4 vote, that a religiously motivated employer could not be required to underwrite contraceptive coverage under the ACA.

Both Hobby Lobby and Zubik are governed by the Religious Freedom Restoration Act (RFRA), a statute that provides a three-part test for the accommodations that the federal government must make before abridging claims of religious liberties. The first part of this test asks the claimant to identify a substantial burden under the regulation. Once that is done, the government has to “demonstrate” under the second part that its action is done in furtherance of a “compelling state interest,” for which it has chosen, under the third part, the “the least restrictive means” of implementation.

RFRA was a bipartisan bill passed with overwhelming support in 1993 because of the outcry over the Supreme Court’s decision inEmployment Division v. Smith, in which a sharply divided Supreme Court held, through the late Justice Antonin Scalia, that any neutral regulation could not be challenged under the Free Exercise Clause because of its disparate impact on religious liberty.Smith held that criminalizing the use of peyote in religious ceremonies was permissible so long as it was also criminalized for recreational use, as a neutral law of general applicability. The break down in the bipartisan consensus behind RFRA is evident inZubik.

To set the stage, the Department of Health and Human Services (HHS)—which oversees the regulations associated with the contraceptive mandate under the ACA—has supplied churches a total exemption from the contraceptive mandate. But it did not extend this exemption to other religious groups, universities, and hospitals, all of which are also treated as charitable institutions both in the common law and under the under section 501(c)(3) of the Internal Revenue Code. Under the HHS regulations, they need not supply the coverage themselves. Instead, they must sign forms that indicate that they will “opt out” from the system and authorize—either directly to the insurer or indirectly through the government—that their insurers or third-party administrators will supply that coverage to women “without cost-sharing” with the covered women. These religious organizations are also required to maintain continuing relationships with the government to see that the plan authorizations are property updated. As the Little Sisters made the point explicitly in their reply brief, they object to “the government’s insistence that they execute documents that the government itself deems necessary to its efforts to get contraceptive coverage to their employees.” They would have signed a true opt-out in a heartbeat.

The government concedes that the religious organizations in question believe that they are “complicit” in the commission of a religious wrong by supplying that information. At this point, the case should be over. Forcing people to choose between fidelity to their religious beliefs and serious fines and penalties has to count as a serious burden under RFRA. Nor is there any compelling reason to force them to supply services that are freely available elsewhere. Against this backdrop, Zubik should be an easy case. But judging from the claims that the four liberal justices advanced in oral argument, the case is likely to come out in a 4-4 tie, which keeps the question in limbo until a nine-member Supreme Court decides the matter conclusively.

Matters got off to a rocky start during the oral argument when Justice Sonia Sotomayor pressed Paul Clement, who represented the Little Sisters, with the odd example of conscientious objectors who, “if they registered as pacifists, that that [sic] would mean other people who have to serve in their lieu.” But this example is not analogous to the case at hand. The government has to increase its recruitment, whether or not a conscientious objector opts out of the program, and it most assuredly could do so without the objector’s authorization. But there is no way that the government can force the insurer or third-party administrator (without compensation no less) to provide contraceptives to a religious objector unless that authorization is obtained. No one thinks that religious institutions must authorize government military expenditures out of general revenues.

The confusion only deepened when Justice Elena Kagan pressed Clement with yet another odd point: “I do object to objecting because objecting will make it easier for the government to fill my slot.” How that could happen is left unexplained, and the obvious point of distinction—that making life easier for the government is the same as authorizing third persons to disburse funds for the benefit of a specific group of employees—is again overlooked. At this point, Justice Kagan is guilty of the indefinite referent “this” when she accuses Clement of a “theory of the case [that] says that everything depends on a person coming in saying this is against my religious, and that being the end-all and be-all.” But no, these organizations only wish to protect themselves, not set the course of national policy on health issues. Their own definitions of right and wrong conduct are entitled to great weight.

Justice Ruth Bader Ginsburg then compounded the confusion by making an oblique reference to the Supreme Court’s 1986 decision in Bowen v. Roy. That case held that the United States did not infringe upon the free exercise of religion of Native American parents when it required them to give the Social Security number for any child applicant for benefits under the Aid to Families with Dependent Children. They claimed that providing the number would violate their “recently developed” Native American beliefs. But the decisive concern in Bowen was the obvious fraud risk from giving AFDC benefits to persons with idiosyncratic personal beliefs. A concern over fraud by the Little Sisters of the Poor was nowhere mentioned in the oral argument in Zubik.

The fourth of the liberal justices, Stephen Breyer, then weighed in with a despairing account of how difficult it is to resolve cases under the tripartite test of RFRA, which was intended to reverse Smith. He asks us to “think of a religious person who's not a hermit or a monk [and] is a member of society, [and] he does have to accept all kinds of things that are just terrible for him. Think of the Quakers, the Quakers who object to Vietnam.”

So, he asked, what is the line needed to decide this case. But there is an answer that squarely favors the religious objectors. The Quaker cannot refuse to pay taxes that go to support wars, even if they regard all wars as unjust. Any decision on whether to enter into a war is necessarily a collective decision that has to bind all if it is to bind any. It is often said that the government has the right to coerce individuals in order to supply them with collective goods from which they all benefit equally. But that optimistic statement of government ignores the many agonizing collective decisions from which some people benefit and others do not. Given the indivisibility of the choice, the correct response is to call for collective deliberation before making a decision that binds all winners and losers afterwards. There is no way that the Quaker can block the country’s entry into war or refuse to pay taxes to support the general government, anymore than the neoconservative can refuse to pay taxes when President Obama refuses to engage the use of ground troops in Syria or Iraq, and instead expends foreign policy resources in Cuba.

The issue in Zubik is not over collective goods; it is over individual contraceptive services to female employees. The best case scenario is that the government stays out of these decisions altogether. Indeed, the Supreme Case has the problem in its lap only because the ACA has unwisely collectivized these matters. But once made collective, it is no more proper to place the cost of caring for a given group of individuals on the religious organizations that are opposed to these particular expenditures than it would be to force the Quakers to pay extra sums to finance some war effort. In both cases, the proper response is to use general revenues to pay for these expenditures, raised from objectors and non-objectors alike.

During his remarks, the Solicitor General echoed the comments of Justice Sotomayor by insisting that making “seamless” coverage available to the female employees of these nonexempt organizations was a “compelling state interest.” Yet the claim falls flat, for how can it be essential that these employees receive that coverage, even though millions of women in grandfathered plans or small businesses do not. In all of these cases, the goods and services in question are supplied in a highly competitive marketplace, in which individual choices are possible. In principle, the only time that the government should compel firms to supply services against their will is when they are, like common carriers and public utilities, the sole suppliers of goods or services. In this particular case, moreover, even if it were thought that these, and only these women, were entitled to subsidized contraceptive coverage, there is no reason why they must receive that coverage solely from a defendant who is steadfastly opposed to it.

To avoid that conclusion, Justices Kagan and Sotomayor both insisted that “churches” were special and they could receive an exemption that is denied to other religious institutions. But the RFRA does not speak about churches. It does, however, speak about substantial burdens on the exercise of religious liberties. It is therefore wholly inappropriate to insist on a set of distinctions that may be appropriate under a rational basis standard, where transitional rules and ad hoc small business exemptions are par for the course. But when the statutory standard speaks of a compelling state interest, these refinements are simply out of place when general revenues can cover these costs.

In essence, the government’s case breaks down at both ends. The state has no compelling interest in supplying contraceptive care to women, and, even if it did, it has absolutely no compelling interest in forcing the insurer of these religious organizations to pay for that subsidized coverage. The expense should fall on the public purse if such payments are held to be in the public interest. Administrative convenience is no justification for overriding the requirements under the RFRA. Indeed, it is only because of the terrible precedent in Smith that this state of affairs cannot be addressed under the Free Exercise clause where it surely belongs. But this case shows just how difficult it has become to protect religious liberty from overweening state power.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Abortion and the Supreme Court

Richard Epstein*

Richard Epstein

Richard Epstein

The Supreme Court will soon decide whether to review two cases, both from the Fifth Circuit, that reach diametrically opposed conclusions about abortion. In Jackson Women’s Health Organization v. Currier, a panel of Fifth Circuit judges stopped Mississippi from enforcing a law that required all physicians performing abortions to have admitting privileges at a local hospital. In Whole Woman’s Health v. Cole, a different panel of Fifth Circuit judges refused to stop the enforcement of two key abortion restrictions in Texas law H.B.2. The first requires that the physician performing the abortion has admitting privileges to a hospital located within 30 miles of the place where the abortion was to be performed. The second provision requires that all abortion clinics comply with the applicable standards for ambulatory surgical centers.

The Mississippi legislation would have shut down the only abortion clinic in the state. The Texas legislation would shut down about three-fourths of the 40 abortion clinics within the state. The two cases are in obvious tension with each other.

The Supreme Court would do well to hear both cases, and to affirm the Mississippi decision in JWHO and overturn the Texas decision in WWO, so that all of the restrictions are struck down. That is evidently the position of those who support Roe v. Wade, which I criticized strongly in 1973, and about which I retain serious reservations today. In the current disputes, however, my qualms with Roe are water under the bridge. The only issue presented in these two new cases is whether either the Mississippi or Texas restrictions comport with the current legal test for examining statutory limitations as set out in the much mooted 1992 Supreme Court decision of Planned Parenthood v. Casey, whose basic rule reflects the deep ambivalence about the constitutional status of abortion. Casey provides that the regulation of a pre-viable abortion is constitutional if the law satisfies two conditions:

 (1) it does not have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus; and (2) it is reasonably related to (or designed to further) a legitimate state interest.

It takes little imagination to see that this formulation is just asking for trouble. The first prong does not address the difficulties in having abortion rights turn on viability. Nor when it does so can it make up its mind whether “purpose or effect” matters, or both. Nor does it give any clear guidance as to how purpose should be decided when restrictions on abortion, such as the two laws raised here, are passed in the name of safety.

The second requirement tries to measure the fit between the means chosen and the purported end, so that “only where state regulation imposes an undue burden on a woman's ability to make this decision does the power of the State reach into the heart of the liberty protected by the Due Process Clause.”

As is routinely the case with constitutional law, the outcome of the analysis under Casey will depend critically on the level of scrutiny that the court applies to the proposed legislation. Indeed, it was on just this question that JWHO and WWO parted company. In JWHO, the court took a close look at the potential impact of the regulation on the practices in question and found that the admitting privileges requirement did little to advance the safety of the procedures and much to shut down the availability of abortion care. The court was quite pointed that Mississippi could not deny the undue burden of its restrictions by showing that women could receive abortions from out-of-state providers, any of whom might change their own rules. They had to make sure that local clinics were available.

WWO took a very different approach. It first held that it was not the duty of the Court to “second guess legislative fact finding,” because “the rational basis test seeks only to determine whether any conceivable rationale exists for an enactment.” At this point the actual size of the burden no longer matters. Under this standard, the state has wide discretion to decide what safety standards are necessary to guarantee that women getting abortions receive the highest standard of health care, wholly without regard for how much they were at risk of adverse health consequences under the prior legal regime.

And it is now permissible to note that the out-of-state alternatives available to women (no matter what their safety levels) insulate the law from attack. The WWO’s blistering petition for certiorari details the evidence that the District Court assembled showing that the Texas restrictions were far more likely to increase the risk of abortions notwithstanding the willingness of the Fifth Circuit to take at face value the claim that the “State truly intends that women only receive an abortion in facilities that can provide the highest quality of care and safety—the stated legitimate purpose of H.B.2.”

As a matter of simple constitutional interpretation, the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue. Indeed, the weaknesses of this lax standard of constitutional review are not confined to the abortion cases, but are universal in any case that applies this highly deferential standard. The term “conceivable” appears in no constitutional text anywhere, but too often is the death knell to any and all constitutional challenges.

Nonetheless, that word was invoked with telling effect in the 1984 decision in Hawaii Housing Authority v. Midkiff, as the Supreme Court held that “where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause.” The upshot of that opinion was to uphold a transparent scheme whereby the lets tenants take their landlord’s interest in property by putting in advance into public escrow the dollars necessary to pay for the transferred property. That outright transfer was now magically justified as a way to combat the supposed “economic evils of a land oligopoly” which was in reality no economic oligopoly at all.

The Court’s deferential standard of review approach used in Midkiff was reflected in its evaluation of a trade secret case of Ruckelshaus v. Monsanto Codecided that same year. At first look, Ruckelshaus seems to have nothing to do with WWO because it only asked whether the United States could publicly disclose trade secret information about a pesticide that the company owned, when the owner supplied the information for the government’s evaluation of the product’s health and safety risks. Justice Harry Blackmun’s incoherent argument anticipated the Fifth Circuit’s argument in WWO, when he foolishly wrote that “Monsanto could decide to forgo registration in the United States and sell a pesticide only in foreign markets”—just as women could travel outside Texas to get an abortion.

Blackmun’s argument in Ruckelshaus was that the advance notice of the regulation left Monsanto choices for how to minimize its risk. True enough, but the residual risk is all too great. Quite simply, no firm is entitled to ask for state aid to force its competitor to divulge its secrets. The United States has a legitimate interest in making sure that products dangerous to health and safety do not reach the market, but it has no legitimate interest in upsetting the sound competitive balance that existed prior to the regulation. It is therefore not proper for the government to give Monsanto the unduly restrictive choice between registering with full release of its trade secrets or foregoing the U.S. market.

The basic point easily generalizes. It is always wholly improper for the government to defend its forced removal of choice A by pointing out that a private party may still choose between B and C. This position applies not only to cases involving economic liberties, but also to social issues of deep concern to the feminist and liberal groups rightly condemning WWO.

The point arises most clearly in connection with two sets of cases that arise under the First Amendment’s protection of the free exercise of religion, which is now under attack. Unlike the dubious constitutional pedigree of the right to an abortion, the free exercise clause gives explicit protection to religious liberty, subject only to the restraints that are properly imposed on all other forms of liberty, such as the use of force and fraud against outsiders. It therefore should be clear that neither the federal nor the state government should be allowed to impose an undue burden on religious freedoms

Most feminists and liberals are united in their deep hostility to the recent Supreme Court decision in Burwell v. Hobby Lobby, in which a bitterly divided court struck down the HHS mandate that would have required “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners.” Under the rational basis test adopted in WWO it is all too easy to give these owners the choice of going out of business, or of denying their employees all forms of health coverage, if they decide not to honor the mandate. After all, reproductive freedom is important to women’s participation in economic markets. But so long as alternative sources of contraception are available in competitive markets, a firm shouldn't be forced out of business for exercising its own religious beliefs. Rational basis is as inappropriate here as in WWO.

The same analysis applies to the aggressive efforts of various state civil rights commissions to subject small photographers and bakers to the hard choice between serving same-sex couples in ways inconsistent with their religious beliefs or going out of business. The undue burden of analysis that should have been applied in WWO works equally well here.

There is a constant temptation on the part of judges and scholars to avoid this conclusion by splitting the constitutional universe between those individual rights that merit serious protection and those that do not. One famous way of framing that distinction is to say that the higher protection is given to “discrete and insular minorities” who are unable to protect themselves in the political process. However, fundamentalist Christian groups surely are unable to protect themselves in states that have adopted strong civil rights laws. Nonetheless, the application of this test inspires people to do rhetorical handstands to announce themselves as politically vulnerable in order to gain an additional leg up in contentious constitutional adjudications.

The correct approach is to scrap any rational basis test that allows state legislatures to paper over their improper motivation with high-sounding statements of lofty legislative purposes. The need to increase judicial scrutiny when any test involving undue burdens is implicated is not confined to the abortion cases, but runs the full length of constitutional law. The Supreme Court should stop the charade in WWO, and do so in an opinion that rejects the rational basis test across the board.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.