Legislating morality progressively - the contraceptive coverage mandate, religious freedom, and public health policy and ethics.

• Author: DeBoer, Michael J.
• Position: III. Analysis Under the Religious Freedom Restoration Act C. The Supreme Court's Ruling through V. Conclusion, with footnotes, p. 90-120 - Issues of Reproductive Rights: Life, Liberty, and the Pursuit of Policy

3. The Supreme Court's Ruling

   On June 30, 2014, the Supreme Court issued its ruling holding that the Administration's mandate violated RFRA. (195) The specific question decided by the Court was whether RFRA permits HHS "to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies' owners." (196)

   The Court determined that for-profit corporations (and individuals like the Greens and the Hahns who own and control them) are persons under RFRA and that protecting the religious freedom of corporations protects the religious freedom of the individuals who own and control them. (197) According to the Court, in RFRA, Congress did not discriminate against owners of companies who desire to operate their businesses in a manner required by their religious beliefs when they decide to organize their businesses as corporations, as opposed to sole proprietorships or general partnerships. (198) Accordingly, federal regulations that restrict the activities of for-profit closely-held corporations must conform to the requirements of RFRA. (199)

   As to the prima facie case that the companies had to show, the Court determined that the mandate substantially burdens religious exercise. (200) The Court explained that the Greens and the Hahns sincerely believe that life begins at conception, that they object to providing health insurance that covers methods that may result in the destruction of an embryo, and that the mandate requires them to "engage in conduct that seriously violates their religious beliefs." (201) Finally, if the Greens and the Hahns (and their companies) fail to comply with the government's mandate, the Court observed, they will suffer serious economic consequences from the penalties imposed by the government. (202) The Court thus determined that the government's mandate, coupled with its coercive power to enforce the mandate by imposing substantial penalties, substantially burdens religious freedom.

   As to the government's showing under RFRA, the Court assumed without deciding that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling, and the Court then turned to the question of the least restrictive means of furthering that interest. (203) The Court observed that the government itself could assume the cost of providing the four objectionable contraceptive methods and that the government had not shown that that alternative was not viable, especially considering that the ACA's insurance-coverage provisions will require the government to assume over $1.3 trillion in costs over the next decade. (204) The Court added: "If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal." (205) But, in the Court's view, it was the Administration's accommodation of nonprofit organizations with religious objections that most clearly demonstrated the availability of a less restrictive alternative. (206) Thus, the Court determined that the federal government had failed to carry its burden of showing that the mandate is the least restrictive means of furthering the government's interest. The mandate was found, as a result, to violate RFRA as applied to closely-held corporations. (207)

4. Other Challenges

   In the cases brought by Hobby Lobby Stores and Conestoga Wood Specialties, the Supreme Court determined that the mandate violates RFRA as applied to closelyheld for-profit corporations. Dozens of cases filed by nonprofit organizations remain pending. (208) In Wheaton College v. Burwell, the Court issued an order on the religious nonprofit college's application for injunction pending appeal. (209) The Court enjoined the government from enforcing against Wheaton College "the challenged provisions of the [ACA] and related regulations pending final disposition of appellate review," if the college notifies HHS in writing that "it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services." (210) The college objected to providing its health insurance issuer and third-party administrator notice of its objection, which would trigger the obligation of the issuer and administrator to provide coverage. (211) In Little Sisters of the Poor Home for the Aged v. Sebelius, the Court had issued a similar order enjoining the federal government from enforcing the mandate, and the Little Sisters had likewise objected to completing the requisite form and sending copies to thirdparty administrators. (212)

   On August 27, 2014, the Departments issued more interim final rules and proposed rules regarding coverage of certain preventive services under the ACA. (213) In the interim final rules, the Departments added to the existing rules based upon the Court's ruling in the Wheaton College case and provided an alternative process for eligible organizations to provide notice of their religious objections to contraceptive coverage. (214) In the proposed rules, the Departments proposed changing the definition of eligible organization in their rules based upon the Court's ruling in the Hobby Lobby Stores case. (215)

   Given the number of pending cases, and the additional rulemakings by the Departments, litigation challenging the mandate is likely to persist for some time. It remains to be seen how the Court's ruling in the Hobby Lobby Stores case will be applied to other for-profit businesses and to the wide range of nonprofit organizations and individuals challenging the mandate.

   The mandate's complicated regulatory history and the three years of litigation challenging the mandate highlight fundamental failures in the Administration's approach to establishing the mandate through agency rulemaking. The Departments chose to use the interim final rulemaking process that, while accelerating rulemaking, restricted and delayed meaningful participation by the public, including the participation of individuals and organizations adversely affected by the mandate. The Departments' choice to use this truncated rulemaking process hampered deliberation and deprived them of feedback from the public that would have led to more carefully reasoned rulemakings. Had the Departments chosen to use the standard notice-and-comment rulemaking process, issues under the First Amendment and RFRA would have likely come into focus earlier, and the Departments could have addressed those issues earlier. As it was, the Departments were years behind in performing the statutorily-required analysis under RFRA. Moreover, in their rulemakings, they never performed the RFRA analysis as to the burden their mandate imposed on for-profit organizations. Consequently, the Departments invited trouble by leaving the performance of that analysis to litigants and the courts.

   4. ANALYSIS UNDER A PUBLIC HEALTH POLICY AND ETHICS FRAMEWORK

   The contraceptive coverage mandate is a public health initiative. Consequently, a public health policy and ethics analysis is warranted. The analysis performed here employs a public health policy and ethics framework proposed by a team of bioethicists and public health law and policy experts. This analysis begins with an overview of that framework and then evaluates the Administration's mandate under the team's proposed analytical structure.

1. The ACA, the Mandate, Public Health, and Social Justice

   As discussed earlier, Congress in the ACA mandated that group health plans, health insurance issuers, and many employers cover categories of preventive health services with no cost sharing. (216) In implementing these ACA provisions, the Administration decided to include within the preventive health services coverage package all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling. (217) In mandating coverage of preventive health services, which now includes contraceptive and sterilization services, Congress and the Administration decided to make use of health plans, health insurance issuers, and employers in the federal government's effort to promote public health. (218)

   The decision of Congress and the Administration to cast the mandate in the mold of public health is significant. Health care and medicine are oriented primarily to individuals. (219) In health care, attention is centered on the physician-patient relationship, and in therapeutic relationships, physicians act in the best interests of their patients, providing care to diagnose and treat injury and illness and to cure disease. (220) By contrast, public health focuses on populations and government efforts to promote the health of populations and to prevent injury, illness, disease, and disability. (221) Consequently, in public health, the focus is not on the care of individual patients. (222) Public health has traditionally aimed to promote the common good through government efforts to collect and analyze data and then intervene to prevent and reduce risks and harms. (223) Traditional public health activities included disease surveillance, sanitation, injury prevention, and infectious disease control and prevention. (224) Through these and similar efforts, governments have sought to address the underlying causes of disease and disability in populations. (225)

   Over the last two decades, some public health experts and bioethicists have advocated a broader, more comprehensive vision of public health and its mission. (226) According to this vision, the mission of public health becomes a large, allencompassing endeavor to address a wide range of social, economic, and environmental "determinants of health" and to ensure a fair allocation of resources. (227) Acting pursuant to this enlarged vision...