One more court of appeals decision (in CTA6)--the government is now seven for seven -- and one more brief in opposition from the SG (from the CTA3 cases), all incorporated in my long post:
http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html Here are the new and updated parts: i. On August 21, 2015, in *Michigan Catholic Conference v. Burwell <http://www.ca6.uscourts.gov/opinions.pdf/15a0202p-06.pdf>*, the U.S. Court of Appeals for the *Sixth Circuit* rejected RFRA claims in consolidated cases the Supreme Court had remanded to the court of appeals before the government amended its religious accommodation. The court affirmed the district court's denial of a preliminary injunction to five organizations with insured plans--Catholic Charities of Tennessee, Inc., Camp Marymount, Inc., Mary, Queen of Angels, Inc., St. Mary Villa, Inc., and Aquinas College--and one organization (Catholic Charities Diocese of Kalamazoo) with a self-insured plan, all of which object to all approved forms of contraceptive methods. The court of appeals concluded that the plaintiffs were unlikely to prevail on the merits because they would be unable to show a substantial burden on their religious exercise. In most respects, the opinion resembles those of the other courts of appeals. One particular aspect of the opinion is noteworthy: In their supplemental brief <https://www.justsecurity.org/wp-content/uploads/2015/08/mich.cath_.conf_.supp_.br_.pdf>, the plaintiffs had argued that, even with the accommodation, they would be complicit in sinful conduct because they would be responsible, not for the fact that their employees would use contraception (something that would happen anyway), or for the fact that those employees would be reimbursed for such contraception (ditto), but instead for the fact that a *particular *insurance company (or TPA) would be providing coverage to *particular *employees: [I]t is mistaken to suggest that Plaintiffs’ TPAs and insurers somehow have an “independent” obligation to provide the objectionable coverage to Plaintiffs’ employees regardless of whether Plaintiffs comply with the Nonprofit Mandate. The law is clear that no such obligation exists unless Plaintiffs (a) maintain an objectionable contractual relationship with their insurers or TPAs and then (b) submit the objectionable “self-certification” or “notice.” Most obviously, if Plaintiffs stopped offering health plans, their insurers and TPAs would have no obligation whatsoever to provide Plaintiffs’ beneficiaries with the objectionable coverage. The Government has never suggested otherwise. *It is thus undeniable that the provision of the objectionable coverage by Plaintiffs’ TPAs and insurers is entirely contingent on Plaintiffs’ actions*. Under these circumstances, Plaintiffs believe the decision to offer health plans entangles them in wrongdoing and facilitates delivery of the objectionable coverage, thus making them complicit in sin. As I've explained in previous posts <http://balkin.blogspot.com/2014/07/confirmation-that-supreme-courts.html>, plaintiffs in these cases are increasingly invoking this "matchmaker" argument as their principal theory of complicity (perhaps because all of their many other theories are untenable <http://balkin.blogspot.com/2014/07/unpacking-forthcoming-rfra-challenges.html>). The Sixth Circuit's response was quite cursory: It is true that if Plaintiffs decided not to offer health coverage at all, then they would not have to offer coverage for contraceptives. But they would also be breaking the law. RFRA does not give parties license to break the law. This treatment is unsatisfactory in several respects. First, if plaintiffs chose not to offer health coverage, they would *not *be violating the law. (See my posts here <http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html> and here <http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html>.) Second--although it's really neither here nor there--the whole point of RFRA, in cases where plaintiffs prevail, is that it *does *in effect give parties license to "break" the law (or, more accurately, it affords them an exemption from what would otherwise be a legal requirement). More to the point, the court's rejection is simply not responsive to the substance of plaintiffs' argument. That argument, as explained above, is that particular aspects of their conduct--choosing to offer their employees access to a health insurance plan, and choosing to contract with a particular third party to be the plan insurer (or TPA)--cumulatively *causes* one third party (the insurer) to compensate another third party (the employee) for her purchase of contraception. The court of appeals does not really contend with this argument about "matchmaker" causation. (I have offered some preliminary thoughts about possible responses to this argument at the end of this post <http://balkin.blogspot.com/2014/07/confirmation-that-supreme-courts.html> .)] * * * * In addition to these nine decisions, there are other cases pending in [*UPDATE: three*] courts of appeals. On December 3, 2014, another panel of the U.S. Court of Appeals for the *Seventh Circuit* (Judges Manion, Rovner and Hamilton) heard oral arguments in the consolidated cases *Grace Schools v. Burwell *and *Diocese of Fort Wayne-South Bend v. Burwell *(audio here <http://media.ca7.uscourts.gov/sound/2014/rt.14-1430.14-1430_12_03_2014.mp3>). The parties in that case later filed supplemental pleadings addressing the impact of the court's decision in *Notre Dame*. On December 10, 2014, a panel of the U.S. Court of Appeals for the *Eighth Circuit* (Judges Wollman, Colloton and Benton) heard oral arguments in *Sharpe Holdings, Inc. v. HHS *and *Dordt College v. Burwell* (audio here <http://media-oa.ca8.uscourts.gov/OAaudio/2014/12/141507.MP3> andhere <http://media-oa.ca8.uscourts.gov/OAaudio/2014/12/142726.MP3>)*. *Finally, on February 4, 2015, a panel of the U.S. Court of Appeals for the *Eleventh Circuit* (Judges Pryor, Tjoflat and Anderson) heard oral arguments in*Eternal Word Television Network v. Burwell* and *Roman Catholic Archdiocese of Atlanta v. Burwell.* I am not aware of any cases that have been briefed or argued in the First, Fourth and Ninth Circuits. *III. The pending cert. petitions* Four [*now six*] petitions for *certiorari* have already been filed in the Supreme Court: * * * * [UPDATE: The government has already filed two briefs in opposition to these petitions. On August 12, 2015, the Solicitor General filed this brief <https://www.justsecurity.org/wp-content/uploads/2015/08/priests.archdiocese.bio_.pdf> in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the D.C. Circuit in *Priests for Life*. He argues in that brief that Supreme Court review is not warranted because all six courts of appeals to have ruled as of that date had "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries." The SG does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, *Roman Catholic Archbishop of Washington v. Burwell*, principally for the reasons I discuss below. On August 20, 2015, the SG filed this brief <https://www.justsecurity.org/wp-content/uploads/2015/08/zubik.bio_.pdf> in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the Third Circuit in *Geneva College*. That brief largely tracks the earlier brief in the D.C. Circuit cases. The SG argues at the end of the brief that even if the Court were to decide to grant a petition, it should not be these, because--in contrast to No. 14-1505--they do not involve any self-insured non-church plans, and because--again in contrast to No. 14-1505--the Third Circuit did not address the compelling-interest/least-restrictive-means aspects of the RFRA question. The Court will likely consider whether to grant some or all of the petition at its "long conference" at the beginning of October, or sometime later in October. The Court may very well choose not to hear any of the cases unless and until there's a circuit split. Therefore, what happens in the other three cases currently pending in the courts of appeals (see above) could determine whether and when the Court takes up the issue. If the Court does eventually grant one of the current petitions, I'd think it would likely be No. 14-1505 <http://justsecurity.org/wp-content/uploads/2015/07/dcarchbishop.pet_.pdf>, *Roman Catholic Archbishop of Washington v. Burwell*, principally for the reasons offered in Part IV of that petition, including these: -- The case was decided on the merits (cross-motions for summary judgment), not on a motion for preliminary relief. -- The petitioners present the full range of insurance arrangements that have given rise to RFRA claims in the nonprofit context, including insured plans, self-insured plans, and self-insured church plans. (As the opinions in the recent Tenth Circuit case demonstrate, the RFRA analysis is very different with respect to each distinct sort of plan.) This petition also involves both employee and student plans. -- The petitioners object to the entire range of the 18 covered contraception methods, not only the four at issue in *Hobby Lobby* and other cases. -- Judge Pillard's two opinions are very thorough (and she addressed the statutory claim, as well). The en banc petition also prompted two distinct dissenting opinions, by Judges Brown and Kavanaugh, which differ from one another in important respects. -- Most importantly, the D.C. court of appeals, unlike the other courts of appeals thus far, squarely address On Thu, Aug 13, 2015 at 6:27 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > First USG Brief in Opp. filed: > > On Wednesday, the Solicitor General filed this brief > <https://www.justsecurity.org/wp-content/uploads/2015/08/priests.archdiocese.bio_.pdf> > in > opposition to the two petitions for *certiorari *from the decision of the > U.S. Court of Appeals for the D.C. Circuit in *Priests for Life. *He > argues that Supreme Court review is not warranted because all six courts of > appeals to have ruled thus far have "correctly rejected petitioners’ RFRA > challenge to the accommodation, which exempts petitioners from any > obligation to contract, arrange, pay, or refer for contraceptive coverage > for employees or their beneficiaries." He does, however, signal (pp.30-31) > that if and when the Court decides to consider the question, it should > grant the petition in No. 14-1505, *Roman Catholic Archbishop of > Washington v. Burwell*, principally for the reasons I discussed in this > post > <http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html> > . > > On Sat, Aug 8, 2015 at 10:28 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> The Second Circuit rules in accord with the others; four more cases >> outstanding (in the 6th, 7th, 8th and 11th Circuits). >> >> [UPDATE: h. On August 7, 2015, in *Catholic Health Care System v. >> Burwell >> <http://www.ca2.uscourts.gov/decisions/isysquery/786a8b95-3147-42e2-a267-283f1b88d8e2/3/doc/14-427_opn.pdf>*, >> the >> U.S. Court of Appeals for the Second Circuit unanimously ruled, on the >> merits, that the augmented accommodation "do[es] not substantially burden >> Plaintiffs’ religious exercise in violation of RFRA," in a case brought by >> two high schools and two health care organizations, all of which use >> self-insured "church plans." >> >> In an opinion by Judge Pooler, the court of appeals reasoned, as have the >> other courts, that “a religious objector’s submission of the form or letter >> does not, as a legal matter, trigger or facilitate the provision of >> contraceptive coverage. Rather, contraceptive coverage occurs through >> operation of federal law. When third parties step in and provide >> contraceptive coverage after Plaintiffs opt out, they do so not because >> Plaintiffs have opted out, but rather because federal law requires or >> incentivizes them to provide such coverage. The accommodation functions >> not as a 'trigger,’ but rather as a means of identifying and exempting >> those employers with religious objection.” Toward the end of its opinion, >> the court addressed the argument that is increasingly becoming the focus of >> the nonprofits' arguments--namely, that the complicity arises not because >> opting out results in *someone else *offering contraceptive coverage, >> but instead because opting out can result in coverage being offered by the >> very company that the employer has contracted with to act as the >> third-party administrator (if that administrator chooses to do so--because >> these are church plans, the government cannot require the TPA to do so). >> The court rejected the idea that this particular relationship can result in >> a substantial burden: "Plaintiffs’ relationships with their employees and >> third-party administrators," wrote Judge Pooler, "do not provide them an >> avenue to dictate these entities’ independent interactions with the >> government, even if Plaintiffs find these actions objectionable." >> >> On Fri, Jul 24, 2015 at 3:29 PM, Marty Lederman <lederman.ma...@gmail.com >> > wrote: >> >>> Also, the Seventh Circuit today denied Notre Dame's petition for >>> rehearing en banc; no judge requested a vote on the petition. >>> >>> On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman < >>> lederman.ma...@gmail.com> wrote: >>> >>>> A fifth petition filed, this one in *Little Sisters*: >>>> >>>> [UPDATE: >>>> >>>> e. On July 23, 2015, the parties in one of the consolidated cases in >>>> the Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105 >>>> <https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf> >>>> , *Little Sisters of the Poor Home for the Aged v. Burwell *[Paul >>>> Clement, Counsel of Record]. As noted above, all three judges on the Tenth >>>> Circuit panel, including Judge Baldock, rejected Little Sisters' claim on >>>> the theory that there can be no substantial burden in that case because the >>>> Little Sisters employees will not receive cost-free contraception coverage >>>> in any event: Little Sisters uses a church plan administered by Christian >>>> Brothers Services, which has itself made clear that, because of its own >>>> religious objections, it will not provide contraceptive coverage if the >>>> Little Sisters were to opt out--and the government may not compel Christian >>>> Brothers to offer such services. >>>> >>>> Little Sisters nevertheless argues in its petition (see footnote 2) >>>> that its opt-out might still result in coverage for its employees, because >>>> its plan has *another* TPA, Express Scripts, that has not made the >>>> same representation as Christian Brothers; and at oral argument in the >>>> Tenth Circuit counsel for the government represented that the Department of >>>> Labor would ask Express Scripts to provide coverage to those employees even >>>> though the government has no legal authority to require Express Scripts to >>>> do so. The judges on the court of appeals not surprisingly disregarded >>>> Little Sisters' argument respecting Express Scripts; as I blogged back >>>> in January 2014 >>>> <http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html>, >>>> and as the government argued to the court of appeals, "Plaintiffs made no >>>> reference to Express Scripts in their complaint or in their preliminary >>>> injunction filings, and allegations about this organization cannot be a >>>> basis for challenging the court's denial of the preliminary injunction. . . >>>> . Moreover, plaintiffs bear the burden of establishing their entitlement >>>> to injunctive relief, which they have wholly failed to do with respect to >>>> any possible coverage by Express Scripts." That is to say, even assuming >>>> that Express Scripts is a third-party administrator, the mere possibility >>>> that it might voluntarily provide contraceptive coverage to Little Sisters' >>>> employees, absent any regulatory compulsion to do so, presumably would be >>>> insufficient grounds to reverse the preliminary injunction, given that >>>> Little Sisters bears the burden of establishing its entitlement to >>>> injunctive relief.] >>>> >>>> On Mon, Jul 20, 2015 at 12:23 PM, Marty Lederman < >>>> lederman.ma...@gmail.com> wrote: >>>> >>>>> FYI, a post on developments of the past few months, in three parts: >>>>> >>>>> >>>>> http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html >>>>> >>>>> *First*, a quick note on the government's new final rules regarding >>>>> the religious accommodation (including its extension to some for-profit >>>>> employers such as Hobby Lobby, Inc.). *Second*, a summary of the >>>>> courts of appeals' treatment of the nonprofit challenges. And *third*, >>>>> a discussion of the handful of *cert. *petitions that already have >>>>> been filed in the nonprofit cases--with particular emphasis on the >>>>> theories >>>>> of complicity that those petitions allege in support of the argument that >>>>> the accommodation imposes a "substantial burden" on the plaintiffs' >>>>> religious exercise. >>>>> >>>>> I'd be very grateful if listmembers would let me know if I've gotten >>>>> anything wrong, or overlooked anything of note. And if you become aware >>>>> of >>>>> any further court of appeals decisions or cert. petitions, please let me >>>>> know ASAP, so that I can update. Thanks >>>>> >>>> >>>> >>> >> >
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