5A. RFRA Strict Scrutiny: The Interest in Protecting Health

(For an introduction to this series of posts, see here.)

We can now get to what I think should be the heart of the case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” I don’t know what the answer to that is, because this test is so undefined; my thinking here is also quite tentative, and I’m certainly open to being persuaded. But I thought I’d post today about three possible interests — protecting health, providing for sex equality, and protecting newly created private rights — and say a few words about them.

1. This post focuses on the interest in protecting health. Under RFRA, it’s not enough for the government to point to how the Affordable Care Act writ large supposedly protects health. Nor is it enough for the government to point to how the coverage for contraceptives generally would protect health. Rather, the question is whether denying the limited religious exemption that is being sought here — the exemption for the particular potentially implantation-preventing contraceptives to which the claimants object — would undermine a compelling interest in protecting health, so that denying the exemption would be the “least restrictive means” of protecting health. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”

Moreover, the “least restrictive means” requirement shows that the existence of a compelling interest isn’t enough. Under RFRA, the government must consider creative ways of serving its compelling interests while at the same time accommodating, to the extent feasible, religious objections.

2. It seems to me that a compelling interest in protecting health is indeed implicated here. Preventing unwanted pregnancy helps prevent a wide variety of possible health problems. Protecting physical health seems likely to be seen as a compelling interest. And making these contraceptives available to people with no out-of-pocket cost to them will make it more likely that they will be used, and the health problems will be avoided.

Moreover, particular contraceptives are particularly effective in dealing with particular conditions. Plan B is particularly effective at preventing pregnancy post-intercourse. IUDs are particularly effective for women who have bad reactions to oral contraceptives. So I expect that the Court will indeed say that the government’s attempt to make these particular contraceptives available to employees of Hobby Lobby and similar employers furthers a compelling interest in protecting health.

3. The difficulty is with whether there are “less restrictive means” of serving this interest than a total denial of the religious exemption request. One can certainly say there are: The government, which is to say the taxpayers, could just buy all Hobby Lobby employees free contraceptives, or otherwise pay for them in ways that are basically tantamount to that. (The taxpayers already pay for lots of contraceptives; they can just pay for some more, the argument would go.) That solution wouldn’t impose any legal burden on Hobby Lobby, so it would be less restrictive of religious exercise. And it would still serve the government interest, because everyone would still have the contraceptives they need to protect their health.

The obvious response, of course, is that RFRA can’t be seen as requiring taxpayers to pay potentially many millions of dollars in extra costs. And indeed the logic of United States v. Lee (1982) and its rejection of a religious exemption from tax law has to support that. After all, the government could grant exemptions from a wide range of taxes — e.g., to pacifists who don’t want to support the draft, the Amish who don’t want to support the social security system, and so on — and serve the compelling interest in raising revenue by the “less restrictive means” of making all other taxpayers make up the shortfall.

But that can’t be, it would appear given Lee, what the “less restrictive means” test demands. It would seem that “less restrictive” must mean “less restrictive, without forcing taxpayers to bear substantial extra costs in compensating for the exempted people’s refusal to pay.” (Another way of articulating that would be that the compelling government interest may be reframed as “an interest in __, without creating extra costs for taxpayers.”)

At the same time, the unemployment compensation cases — Sherbert v. Verner (1963), Thomas v. Review Bd. (1981), Hobbie v. Unemployment Appeals Comm’n (1987), and Frazee v. Illinois Dep’t of Econ. Sec. (1989) — all held that employees fired because of their religious conduct have the Free Exercise Clause to get unemployment compensation from the government. Those cases thus did require the government to pay out money to religious objectors. They didn’t say that refusing to pay unemployment compensation was the least restrictive means of preventing taxpayers from having to pay for the consequences of religious objectors’ beliefs (though the dissent made a version of this argument).

To be sure, some opinions have treated the unemployment compensation cases as being focused on equal treatment. To quote Justice Stevens’ concurrence in Hobbie, when a state “provides unemployment benefits to those persons who become ‘unemployed through no fault of their own,’ but singles out the religiously motivated choice that subjected [a person] to dismissal as her fault and indeed as ‘misconduct connected with … work,’” the state treats “religious claims less favorably than other claims.” “In such an instance, granting unemployment benefits is necessary to protect religious observers against unequal treatment.”

But it’s far from clear that all the unemployment cases did involve such unequal treatment. For instance, in Thomas I expect that pretty much anyone fired because he refused to work on certain products — whether for religious reasons or any other reasons — would have been treated by Indiana authorities as having been at fault in the dismissal, and would have been denied unemployment compensation. Thomas was thus being given a financial benefit to which a pure equality rationale would not have entitled him. (Indeed, Justice Rehnquist’s dissent in Thomas argued that the state courts had “construed the State’s unemployment statute to make every personal subjective reason for leaving a job a basis for disqualification.”)

And beyond that, all the opinions that sought to characterize Sherbert as being an equal treatment case — Smith, plus some non-majority opinions, such as Justice Stevens’ Hobbie concurrence — were written by Justices who were trying to reject Sherbert’s broader role as securing a right to religious exemptions. That is not the position, I think, that Congress was trying to “restor[e]” with RFRA.

Another possible way of limiting Sherbert is that it likely involved only a fairly modest financial burden on the government. My sense is that not a lot of people quit work for religious reasons, or even did in 1963, back when employers had no duty to accommodate relatively low-cost religious objections. Nonetheless, the aggregate cost of such unemployment compensation (on top of the unemployment compensation that would be paid out quite apart from any religious objections) is likely pretty significant — maybe not that far from the aggregate cost of providing free contraceptives of certain kinds to employees whose employers refuse to pay for them (on top of the government spending on contraception that would be paid out quite apart from any religious objections).

So it’s just not settled whether “least restrictive means” for RFRA purposes can include means that are quite expensive to the government, so that taxpayers have to pay a good deal of money to accommodate religious objectors. How the Court will decide this, and how it should decide this in trying to faithfully apply RFRA, is not at all clear.

4. As I understand it, the Administration created a possible accommodation for some religious nonprofits, which I’ll call the “insurer supplement mandate.” It appears that coverage of contraceptives apparently doesn’t impose any net cost on insurers: contraceptives cost money, but they tend to decrease the insurer’s need to spend more money on health care stemming from pregnancy. The Administration therefore set up a system through which certain nonprofits who object to coverage of some or all contraceptives could buy insurance policies that don’t ostensibly cover them, but then the insurers would be obligated to pay for the contraceptives without any charge to the policyholders (or any direct charge to the employers).

If (a) such an accommodation were indeed basically no-cost for employees, insurers, and taxpayers — other than some modest administrative costs, which are likely for any religious exemption system from any law — and if (b) the employer thought this would avoid religiously culpable complicity on its part, then providing the accommodation probably would be a less restrictive means of serving the compelling interest in protecting health. Health would still be protected, taxpayers, insurers, and employees wouldn’t have to pay, and the Hobby Lobby owners wouldn’t have to violate their religious beliefs.

Indeed, this might be a classic case for the application of RFRA, because it would involve such a low-cost accommodation. The government wouldn’t be able to just apply the employer mandate directly to Hobby Lobby, because of RFRA, but it could accomplish its goals by implementing this workaround.

But I don’t think this would work for Hobby Lobby, which is self-insured, and would thus have to pay for the potentially implantation-preventing contraceptives in any way. And it wouldn’t work even for some non-self-insured companies, if they think that such an insurer supplement mandate doesn’t remove them from complicity in what they see as homicide. (This, again, is a question of what they sincerely believe about the moral consequences of the workaround, not of what secular courts believe.) In such a case, the alternative isn’t really a less restrictive alternative — it’s just as restrictive of the religious objectors’ religious exercise.

5. There is, however, one other possible alternative related to the preceding one, which I’ll call the “objector compensatory assessment.” The government could (a) calculate the cost of separate coverage for the contraceptives that an employer doesn’t want to cover, (b) require the employer to pay that amount to the government as a special assessment, and (c) make available free contraceptives to that employer’s employees, using those collected funds. This alternative would involve no cost to taxpayers (except administrative cost, though potentially even that could be charged to the employer). It would involve no payments by employees.

And if the employer thinks this is religiously acceptable, then it would be a less restrictive means of serving the government interest. It would still be somewhat restrictive: The employer would have to pay extra because of his religious refusal to provide the normal health insurance plan. But this would be a much smaller payment (likely a few hundred dollars per year per employee), and one that might not be prohibitive to many employers. If there is a compelling government interest, after all, RFRA potentially authorizes substantial burdens on religious observers — the burdens just have to be as little restrictive as possible. A $500 per year payment per employee is less restrictive than a $100 per day payment.

One analogy, though a somewhat distant one, for this scheme might be what courts created when some Seventh-Day Adventist employees at union shops sued under the Title VII religious accommodation mandate, claiming — apparently sincerely — that they had a religious objection to paying union dues: the employees were required to pay the equivalent of the union dues to a suitably chosen charity, so that they wouldn’t have to violate their religious beliefs, but also wouldn’t have an incentive to fake such beliefs, and wouldn’t get an unfair advantage over other employees who lacked such beliefs.

The purpose of that exemption was of course different than the purpose of this hypothetical objector compensatory assessment. Courts were concerned about preventing unfair advantage to the objector — something that isn’t in play here, given that employers apparently gain nothing from refusing to provide coverage for these particular contraceptives. In Hobby Lobby, the Court would be concerned about preventing unfair loss to employees or taxpayers. But my point here is simply that courts can set up special payment requirements as accommodations for religious objectors, accommodations that avoid the religious burden on the objector though still involve some modest financial burden on the objector.

Another analogy might be historical religious accommodations that required draft objectors pay money so that the government may hire a substitute instead of the objector. Again, the analogy is imperfect, but an objector compensatory assessment should if anything be less objectionable than the draft exemption. The objector wouldn’t be buying himself out of physical danger, and paying someone else to risk his life, but would simply compensate the taxpayers for the financial cost imposed by the objection. Nor would the assessment, which should be fairly modest, discriminate against poor objectors the way as much as the draft payments had done.

Of course, it remains unclear whether Hobby Lobby’s owners, and the other owners in such a position, would find this means to be religiously acceptable. As I noted above, if they think this solution is still religiously forbidden to them, then the solution doesn’t count as the less restrictive means. In such a situation, entirely denying any exemption might well be the least restrictive means of serving the compelling government interest (subject to the discussion in item 3 above). But if the objector find this compensatory assessment scheme to be tolerable, then perhaps this will be the compromise that the government would have to use.