If that were Wheaton's position, why would it be celebrating a decision
that explicitly says "[n]othing in this order precludes the Government from
relying on this notice, *to the extent it considers it necessary*, to
facilitate the provision of full contraceptive coverage under the Act"?
Whether or not Form 700 actually served as a legal trigger to facilitate
coverage, the written notice approved by the Court is clearly a trigger to
facilitate coverage, and Wheaton has raised no objections to that written
notice. That would seem to indicate that Wheaton's objection has less to do
with the triggering effect of notice and more to do with the details of the
notice. Cf. Wheaton Reply Brief at 9 ("Whatever the right answer—trigger or
no trigger, facilitating or not facilitating—the undisputed fact is that
Wheaton has a sincere religious objection to executing the Form [700].").
I agree that many people would struggle to see a difference between Form
700 and the written notification scheme crafted by the Court and embraced
by Wheaton College, but I presume the difference has to do with degrees of
separation. Wheaton College apparently believes signing and sending Form
700 directly to insurance issuers is more directly connected to the
ultimate provision of contraceptive coverage than signing and sending a
notice to the government, which in turn notifies the issuers of their
obligations.
Update: I just saw Mark's post, and he captures the position I assumes
Wheaton holds as follows: "[W]hy should I have to tell a private person
that the govt is restricting my religious liberty, where the result will be
that the private person must then take an action that I consider to be
evil? In a sense I would be inviting that private person to sin, with
resulting damage to that person. (Cf. 1 Corinthians 8, and Matthew 18:6.)
The connection is closer than if I simply send a notice to the govt."
Again, other nonprofits may draw different lines -- including the line
Marty posits of conditional objection to notifying the government, and the
line of objecting to any written notice whatsoever -- and one question is
when the prospect of so many different lines renders it impracticable for
the government to administer numerous alternative notice schemes and allows
it to instead adopt a uniform scheme that may not be equally satisfactory
to all.
- Jim
On Sat, Jul 5, 2014 at 10:35 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:
> My understanding is that Wheaton is ok with that solution *on the
> assumption that its notification to HHS* *will not and cannot be deemed a
> designation of Blue Cross as a plan administrator* -- in which case, if
> we consider only ERISA, the government would not have the authority to
> require BC/BS to provide contraception coverage, and Wheaton's employees
> will not get coverage.
>
> If, instead, as Tom Goldstein suggests, the government treats the
> notification just as it is treating Form 700 -- as a designation of BC/BS
> as a plan administrator, thus creating the conditions for the government to
> require BC/BS to provide coverage -- then I *assume *
> Wheaton would raise a RFRA objection. After all, that would simply be
> replacing one form with a wholly equivalent other form -- how could the
> burden be different in that case?
>
>
> On Sat, Jul 5, 2014 at 1:27 PM, James Oleske <jole...@lclark.edu> wrote:
>
>> Marty -- In your message below, and in your post over at Balkinization,
>> you posit that Wheaton College "might still allege a RFRA violation" if
>> "employees do get the coverage" under the Court's current solution of
>> written notification to the government without using the challenged form
>> and without the obligation that the College notify its insurance issuers
>> and administrators. But in it's reply brief to the Court on Wednesday,
>> Wheaton College represented its position as follows:
>>
>> "[E]ligible organizations should be permitted to opt out of the
>> contraceptive mandate by providing written notification of their objections
>> to the Secretary of HHS, rather than to their insurance issuers or
>> third-party administrators. That is precisely the relief Wheaton seeks ....
>> Wheaton has no difficulty complying with—and indeed has already complied
>> with—the terms prescribed by this Court in Little Sisters....
>>
>> "Wheaton asks for the same relief that this Court granted to the Little
>> Sisters of the Poor. Little Sisters, 134 S. Ct. 1022. There, the Court
>> freed the Sisters from using the Form and allowed them to merely inform the
>> government (not their TPA) of their religious objection.
>>
>> And after the Court issued its order -- which emphasizes (as you note in
>> your Balkinization post) that "[n]othing in this interim order affects
>> the ability of the applicant’s employees and students to obtain, without
>> cost, the full range of FDA approved contraceptives" and that "[n]othing
>> in this order precludes the Government from relying on [Wheaton's] notice
>> [of its religious objection], to the extent it considers it necessary, to
>> facilitate the provision of full contraceptive coverage under the Act" --
>> Wheaton's counsel described the order as a "victory" that allows the
>> college to "practice its faith free from crushing government fines."
>>
>> Of course, other non-profits might draw the line in a different place
>> than Wheaton College and argue that written notification to the government
>> is as problematic as written notification to insurance issuers or third
>> party administrators. And perhaps some other nonprofits might (as I think
>> your post suggests Wheaton College might) conditionally object to notifying
>> the government depending on precisely how the government treats the written
>> notification (e.g., as a definitive legal trigger designating a plan
>> administrator or as an invocation of RFRA, which obligates the government
>> to then find some solution, which perhaps could be viewed as less
>> definitive of a trigger even if everyone knows what the result of the
>> written notification will be). But given its representations to the Court,
>> and its embrace of the Court's order, I think Wheaton College is unlikely
>> to be the entity that presses that argument, no?
>>
>> - Jim
>>
>> On Sat, Jul 5, 2014 at 3:50 AM, Marty Lederman <lederman.ma...@gmail.com>
>> wrote:
>>
>>> Yes, sorry -- did mean to refer to my B'Zation post, and certainly
>>> didn't mean to be snippy. Alas, as my post suggests, all will not be
>>> clear. That's the point: There's no doubt that the majority in WC thinks
>>> it has come up with an ingenious solution that will satisfy everyone. And
>>> perhaps it has, if its opinion is construed to suggest that RFRA empowers
>>> the government to direct Blue Cross to provide the coverage without WC
>>> designating BC as plan administrator, and if that suggestion is legally
>>> feasible. (Two huge "if"s.) But the dissenters, and most of the public,
>>> appear to be of the view that the Court's order will result in a denial of
>>> coverage to WC employees . . . and perhaps they're right. It may depend on
>>> technical ERISA questions. Moreover, as I suggest, if the employees do get
>>> the coverage, WC itself might still allege a RFRA violation, particularly
>>> if BC is designated a plan administrator.
>>>
>>> Chip may be right that at some level this mess is the inevitable result
>>> of RFRA, and of any exemption test that turns in part on an evaluation of
>>> the nature of the burden on religion. But I also think that it is a
>>> function of the increasingly implausible theories of complicity being
>>> offered by the plaintiffs' lawyers -- which the Court has invited with its
>>> capacious understanding of what constitutes a "religious question" beyond
>>> the ken of civil authorities to evaluate.
>>>
>>
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