Courthouse Steps Decision: Little Sisters of the Poor v. Pennsylvania

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's Teleforum conference call. This afternoon will be a Courthouse Steps Decision Teleforum on today's ruling in the Little Sisters of the Poor v. Pennsylvania. My name is Nick Marr, and I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we're fortunate to have with us Eric Kniffin, Partner at Lewis Roca Rothberger Christie. After our speaker gives his opening remarks, we will then go to audience Q&A. Thanks for being here with us today, Eric. The floor is yours.

 

Eric Kniffin:  Thank you, Nick. So today we are going to be talking about the decision released today in Little Sisters of the Poor v. Pennsylvania. So by way of background, this controversy has been going on since 2011. Part one of the Court's decision gives a good view of the backstory.

 

      Under the Affordable Care Act, part of the Affordable Care Act was the Women's Health Amendment, which requires coverage of certain preventative care and screenings, as determined by HRSA, which is an office within HHS. HRSA subsequently created a list, which included among the preventative care services that were required, all FDA approved contraceptives. As will become significant as we go on here, this list, itself, did not go through notice and comment. In fact, the contraceptive mandate, itself, has never gone through the notice-and-comment process under the Administrative Procedure Act. We'll talk more about this later.

 

      So this mandate was created by HRSA. And then between 2011 and 2017, the three Departments responsible for enforcing the Women's Health Amendment—HHS, Labor, and Treasury—issued rules changing how the mandate would be enforced on 16 different occasions. And a lot of those rules were part of an enormous slate of litigation that went over about the mandate. And so responding to different court rulings. But there was an enormous amount of adjustments of the mandate through this time.

 

      So there were dozens of district court cases that were filed against the mandate involving hundreds of religious employers. There were at least 28 cases briefed at the court of appeals level, with at least 23 written decisions on the mandate. And this saga—I think Justice Alito called it an odyssey—has been to the Supreme Court many times, including three written decisions. The Hobby Lobby decision, the Wheaton College decision, and the Zubrick decision, and now this one, a fourth.

 

      The central issue for much of this time has been as a result of the way the Obama administration approached the Religious Liberty concerns resulting from this contraception mandate. Originally, the mandate did not have any provisions for religious employers. But pretty quickly, the Obama administration created an exemption for so-called religious employers. But that exemption was very, very narrow, based on a tax code provision that basically said that the only entities that qualified as religious employers were churches, religious orders, and the integrated auxiliaries of churches. A very narrow exemption.

 

      And then the next step down, later down the line, the administration created a so-called accommodation for religious exercise. This accommodation was described by the administration, and by many courts, as an opt-out, but many religious employers, including the Little Sister of the Poor, says this is not really an opt-out because it still requires us to include these contraceptives as part of our healthcare place, and also requires us to take steps that triggers our third-party administrators duty to deliver those drugs. And so the Little Sisters, and others, have been in litigation for years, saying that the accommodation created by the Obama administration does not satisfy our concerns, our moral complicity concerns with the mandate.

 

      So this came before the Supreme Court in 2016, shortly after Justice Scalia's passing. And that seems to have impacted the Court's posture there. It could be that the Court was split in such a way that the Court did not want to issue a merits decision being short-handed, at that time. And so in 2016, the Court decided to not resolve the underlying issues and told the parties to work it out. The Obama administration made some efforts to try to understand where the parties were on this, and at the very end of the Obama administration, the agency says, we cannot find any satisfying resolution to this. And so they left the rules in place. The same rules that the Little Sisters had been litigating against.

 

      So then comes the Trump administration, which in 2017 created another set of regulations. I mentioned that there were at least 16 rule changes under the Obama administration, and then the Trump administration added another, creating a much broader religious exemption. And so I said earlier that the definition of religious employer under the Obama administration was very, very narrow. And the Trump administration made it much broader.

 

      Within a week, there were a half dozen lawsuits against this new rule. So previously, all the lawsuits were brought by religious organizations against the administration. And now, these were brought by states and women's advocacy groups against the Trump administration. Two of those lawsuits bubbled to the top. There were district court rulings in Pennsylvania and California by district court judges. And then it went on to the Third and Ninth Circuit, which affirmed, and those cases were consolidated before the Court.

 

      So the issue here is whether the Trump administration acted lawfully when it created this broader religious employer exemption. The Third Circuit was the lead case before the Court. I'm sorry, the Ninth Circuit decision is similar, but it was not actually before the Court. But the Third Circuit's holding had four holdings that Justice Alito points out in his concurrence. First of all, held that the Little Sisters lacked standing to appeal. Second, that the Affordable Care Act did not permit any exemptions from the HHS mandate. Third, that the Departments violated the APA's procedural requirements by issuing this broader religious employer exemption as an IFR. And then fourth, that the Departments violated the APA's substantive requirements because the Departments did not look at the comments carefully and with an open mind. And the Supreme Court reversed the Third Circuit on all four grounds.

 

      So to the Court's opinion. The Court ruled 7-2. Part one of the Court's opinion is the backstory, as we've already gone over here, briefly. Part two focuses on, did the Departments have the statutory authority to promulgate the broader religious employer exemption. So this is an Administrative Procedure Act issue. The Court said yes. The Court said, "Our analysis begins and ends with the text." This is a nod to the textualism that we saw in Justice Gorsuch's opinion in Bostock not long ago. So the Court continues on this theme.

 

      The Court said that on its face, the Women's Health Amendment granted sweeping authority to HRSA to create the mandate as it saw fit. And also emphasized that Congress did not say that contraception should be covered. So it would have been one thing if Congress had said, HRSA can work out the details, but one of the things that HRSA must do is say that contraception must be covered. Congress did not do that. The language of the Women's Health Amendment was broad and did not specify anything like that. And so that added to the discretion that Congress gave HRSA in crafting the mandate.

 

      In fact, in footnote eight of the Court's opinion, it noted something that I have emphasized in my own advocacy on this issue, that the mandate, itself, is only a website and has been changed many times without notice. So on several occasions, HRSA has gone back to this original list of preventative screenings that must be covered for women, and it has changed those. Not big changes, but little ones. And there's been no controversy over that. There was no administrative process that proceeded those changes. And so the contraception mandate is of a piece with all of those, that it could be expanded or it could eliminated all together just by updating a website put out by HRSA.

 

      The bottom line of the Court's decision, it's majority decision, is on page 18 of the slip opinion. "The only question we face today is what the plain language of the statute authorizes. And the plain language of the statute clearly authorizes the Departments to create the preventative care standards, as well as the religious and moral exemptions."

 

      There was another part of the Court's decision talking about RFRA, but this was dicta unnecessary to the Court's holding. The Third Circuit had argued that the Departments could not take RFRA into account in crafting any sort of regulations about the mandate. The Third Circuit and the district court had said that HRSA and HHS could only respond to a court's decision that the mandate violates RFRA. But until that happened, the Departments, themselves, could not try to interpret how RFRA applied to the regulations, and the Court said that was wrong. RFRA applies to the Affordable Care Act. RFRA says that the government shall not substantially burden religion. And so, as part of RFRA, it is the government's job, and the Departments are part of the government. So the Departments are, therefore, obliged to try to understand what their legal obligations are under RFRA as they craft regulations about the mandate.

 

      Part three of the Court's decision: the claim that the exemptions were procedurally invalid under the APA. So the Court rejected this argument as well. The Court says, no, that the Departments' IFR gave the public fair notice, and also rejected the argument that the APA contains an open-mind requirement, that the Departments, in responding to public comments that they receive on a proposed regulation, that they have to meet some sort of vague standard that shows that they really had an open-mind when they listened to those questions. And the Court says, no that's not part of the statute. Again, as in Bostock, we're just going with what the statute says.

 

      So the Court's conclusion, on page 26 of the slip opinion, "We hold today the Departments had the statutory authority to craft the exemption. And we further hold that the rules promulgating these exemptions are free from procedural defects." So there are big Religious Liberty themes in this case, but the case itself was decided on Administrative Procedure Act grounds. So that's the Court's opinion.

 

      Moving on to Justice Alito's concurrence, which was joined by Justice Gorsuch. Justice Alito warns that this will not be the end of this saga because, as I mentioned earlier, the Court did not go on to resolve some of the RFRA and other issues that were opined by the Third Circuit and that have been part of this saga, going back to 2011. And by sidestepping some of those issues, there is more -- it reasons that there will be more to this. Justice Alito says, and Justice Kagan in her concurrence agrees, that this case will go back down to the Third Circuit for the Third Circuit to decide whether these regulations are arbitrary and capricious under the Affordable Care Act -- excuse me, under the Administrative Procedure Act.

 

      And so with that in mind, Alito goes on to say that he does not believe that the exemptions created by the Trump administration are arbitrary and capricious. He says they're required by RFRA and he explains why. His concurrence is a really good overview in understanding RFRA and walking through the three parts of that law's legal test. He explains, first of all, that the accommodation challenged by the Little Sisters does substantially burden the Religious Exercise. Number two, he argues that the contraception mandate does not advance expelling governmental interest. And third, that it does not advance the government's interest through the least restrictive means, repeating some language that the Court had put out in Hobby Lobby, most importantly, which said that the least restrictive means of the government advancing this argument would be -- this interest, rather, would be for the government to provide contraception coverage directly, itself, instead of trying to use the plans of religious employers in order to make that coverage available. So that's Justice Alito and Justice Gorsuch's concurrence.

 

      Justice Kagan's concurrence, which was joined by Justice Breyer, explores her concern that the religious exemption is arbitrary and capricious and she offers some reason that I anticipate will be taken up by the Third Circuit in the briefing there, and probably in the court's decision that will come subsequent to the Supreme Court's remand here.

 

      Last, the final opinion, is Justice Ginsberg's dissent. Justice Ginsberg's dissent focuses largely on a theme she repeated three times at oral argument. That the Departments have thrown to the winds, entirely, Congress's instructions that women need and shall have seamless no-cost access to contraceptives. So this is really a battle about what Congress's intent was. It's an issue that you see in the Court's opinion and also in Justice Alito's concurrence. And then in Justice Ginsberg dissent, a lot of battle about what the statute requires and what Congress's intent was.

     

      So what happens next here, in the Court's opinion, or in this saga, more broadly? Has this decision finally ended legal controversy about the contraception mandate? Unfortunately, I think the answer is no. As I've mentioned, two of the opinions explicitly anticipate that the Third Circuit will be looking at whether the Trump administration's exemptions were arbitrary and capricious, or the Administrative Procedure Act. And then even beyond that, the regulations of one administrations are rather fragile. And so, should there be a new President next January, I would anticipate that the Trump administration's broader religious employer exemption would vanish pretty quickly. And so I image that, one way or another, this is not the end of the Court's consideration of this issue. I think there's a good chance this will come back up. And for religious employers, this concern about whether they will have to provide contraceptive coverage in violation of their religious convictions will still be an ongoing concern.

 

      This case also pits the Court's goal of issuing narrow decisions with its goal of resolving legal controversies. And so I think that's an interesting issue that will come out of this, is so the Court has tried to address these issues in getting as large a consensus as possible and in doing so, it has avoided weighing in on some of the more controversial aspects of this ongoing saga. And in doing so, it has left issues open, as it did in 2016, in the Zubrick decision, such that this controversy will continue.

 

      As I said, on remand, the Third Circuit is going to have to look at whether or not these regulations issued by the Trump administration were arbitrary and capricious. The Third Circuit was soundly reversed here. But I think we can anticipate that the Third Circuit will -- there's a good chance that it will find -- still find that these regulations violate the APA's requirements.

 

      Another important issue that was left unaddressed here is how the accommodation actually works. This is something that was the subject of an amicus brief I wrote for the Knights of Columbus. It is really astonishing that, throughout this whole saga, from 2011 to the present, and as I said, much of this time has been a debate over how the accommodation actually works. Whether it does substantially burden religious exercise.

 

      Ever since the first mandate decision by an appellate court, which was authored by, now retired, justice opposer in the Seventh Circuit, the courts of appeals have consistently held, with one exception, that the accommodation to the contraception mandate is an opt-out which does not, in fact, burden the religious exercise of religious employers. However, in doing so, the appellate courts, starting with the Seventh Circuit and continuing on, including most importantly the Third Circuit, has never actually looked at how the accommodation works under the law.

 

      There is unanimous agreement that the accommodation has to work under ERISA. Either ERISA gives the Department of Labor authority to impose certain obligations on third-party administrators, or ERISA does not. But throughout this whole saga, the appellate courts have deferred entirely to what the Trump -- excuse me, the Obama administration has said about the Department of Labor's authority to directly impose a mandate on third-party administrators and has never actually looked to what the law says about this.

 

      I think that the Little Sisters, and other religious employers, have the better of this argument in saying that the Department of Labor does not have the authority that it claims to impose this mandate directly on third-party administrators. The third-party administrators, if they have to do something, it's only because they are required to do so under the plan that is created by an employer. There's nothing in ERISA that allows the Department of Labor to impose mandates directly on third-party administrators. And that is one of the unfortunate things that I think about this decision, is that the Court not having looked at that issue, and with this case going back down to the Third Circuit, I think the Court missed an opportunity here to reign in the courts of appeals and their improper deference to the agencies in this matter, and the courts of appeals failure to look at the statute, the underlying statute here, which is ERISA, to see how it is -- what authority that administrative agencies actually have to make this work.

 

      And so as I wrote in my amicus brief, this has been presented as an Administrative Procedure Act case. But within that is a RFRA issue. And really, the RFRA issue that the Third Circuit decided has a lot to do with ERISA and whether or not that religious employers are right, that this mandate actually forces them to take steps that violate their own conscience. So the government has been arguing that -- the government previously, and now the states, have been arguing that the religious employers are only objecting to what the mandate has third parties do. There's nothing that the religious employers, themselves, have to do that violates their own conscience. Because it is, as the courts of appeals have claimed in [inaudible 00:20:52]. That is a statutory issue. And I'm disappointed the Supreme Court did not take up that statutory issue because I think it's really important to resolve in this controversy.

 

      So that is a brief overview of the case and its opinions. I tried to do a little bit of justice to putting this in some sort of context. This has been a huge saga, but hopefully we'll have more opportunity in the questions and answers here that follows to talk about this decision and what it means.

 

Nick Marr:  Great. Let's go to audience questions now. And Eric, to give our listeners a chance to get in the queue, I'll start off with a first question. Could you speak a little bit about the legislative intent issue that was brought up, mainly by the dissent, but disputed by all, and what role that might play in these remanded cases?

 

Eric Kniffin:  I'm not certain what role it will play in the remanded cases, insofar as they're talking about the arbitrary and capricious standard under the Administrative Procedure Act. But in terms of the background of all these cases, Justice Sotomayor and Justice Ginsberg have been most vocal in arguing that Congress intended that this contraception coverage be made available to women. And also, another argument that came up about mid-way through this whole debate is the argument that Congress wanted access to contraception to be seamless.

 

      The legislative history on this, first of all, if you stick to the text of the statute -- I think the Court's opinion has, certainly, the better of this because the statute does not speak to these issues. And it was not long ago that we had a strong majority in the Bostock decision, saying we're going to stick to the text here. But if you were to look behind the text of the statute, if you look to the legislative history of the Women's Health Amendment, you would see that the sponsors in the broader debate over the Women's Health Amendment state curiously, and I think -- I would imagine, intentionally silent on contraceptives. There were dozens of mentions saying that this amendment was going to help women get screening for cervical cancer, and for mammograms, and for other important women's health issues. This was not advertised in Congress as being a bill that was going to provide contraceptive coverage.

 

      More broadly, the issue of contraceptive coverage, not unlike the issue about whether Title VII should be expanded to cover sexual orientation, has been before Congress on dozens of occasions. And Congress has always said no. So I think there are strong reasons to say that Congress did not, in fact, intend, and did not pass the Women's Health Amendment as a contraceptive mandate.

 

      To the secondary argument brought forward by Justice Ginsberg, that Congress wanted seamless access to contraceptives. Again, that is absolutely absent within the legislative history. If you go back to statements made in favor of the Women's Health Amendment, consistently, you see talk about the desire to reduce cost for women. Cost, cost, cost, probably a dozen different references along those lines. There are no references in the legislative record about wanting women to have seamless access to contraception coverage. So that, again, is an argument that was created by lawyers mid-way through the litigation of all these cases in order to try to box in the Court and get it to hold that there was no least restrictive way for the government to advance its interest.

 

      So in the legislative history, I think it is quite strong that, first of all, there is no compelling interest that Congress demonstrated in favor of a contraception mandate. And to the extent that there was any sort of government interest there, the government did not express any interest in advancing contraception coverage and making it seamless for women. So were the Court to look into the legislative history, I think the Little Sisters, and other religious employers have, by far, the best argument there on the legislative history.

 

Nick Marr:  We'll go to our first caller question.

 

Caller 1:  Yes, thank you. That was an excellent summary of a complicated matter. The Little Sisters are becoming the Jarndyce v. Jarndyce of the contemporary jurisprudence, I'm afraid. I have a couple of quick questions. One, as to the contraceptive mandate, if the Court has the initial inclusion of contraception as one of the covered -- one of the matters that must be covered, has that never been challenged under the APA? This Court didn't apparently rule on it, although it did give some ruling on Trump's effort to amend those regulations.

 

      And secondly, if the -- why didn't the Court address the arbitrary and capricious issue rather than remand that to the Third Circuit. I'm confused about that.

 

Eric Kniffin:  As to your first question, I do not recall the argument ever having been made by religious employers against the mandate that HRSA lacked the authority from Congress -- that it acted outside of the authority granted it by Congress in including contraception under the mandate. I don't think it --

 

Caller 1:  But it didn’t comply with the APA. My point was that there was no argument that it failed to comply with the Administrative Procedure Act, when they did include it.

 

Eric Kniffin:  That would be to the list, as a whole. No, I don't think -- I'm not aware that that was challenged. I'm not aware of that. And then, why did the Court not reach the arbitrary and capricious? I don't have a good answer for that. I think we've seen in a lot of these decisions that the Court is rather minimalist and doesn't want to reach issues that it doesn't have to. I don't know --  Go ahead.

 

Caller 1:  Just to put a point on my point. It seems that we have an irony. The amendment to the regulations was challenged under the APA and will continue to be so challenged. And yet, the initial inclusion of the mandate was never challenge the rule upon under the APA. It just seems ridiculous, really.

 

Eric Kniffin:  That was one of the issues, there was some tension, not exactly on that point. But one of the arguments that was made vigorously at the Third Circuit, and then it was also in the briefs and mentioned at oral argument for the Supreme Court, was that, look, this argument that the Departments lacked discretion to create this religious employer exemption is an odd one, considering that, since almost the very beginning, the Obama administration created a narrower religious employer exemption. And I don't think there was a good answer to that.

 

      Two answers given were, well, that one was different because that first religious employer exemption was arguably required by the First Amendment, as opposed to this one, which is arguably required under RFRA. But perhaps the stronger argument, although certainly less satisfying, and has been made in favor of that distinction, is that, well, the first religious employer exemption is not before the Court. Only the second one is being challenged here.

 

      But there are a lot of inconsistencies, I think, in the APA arguments that were advanced below. And were the Third Circuit's interpretation of the Administrative Procedure Act to be upheld, it have very strange and far reaching consequences that I think are really, deeply at odds, with the way that administrative agencies work with the sorts of things they take into account and the sort of rules that they promulgate. So this decision by the Court is along side of a lot of other things, I think, are ruling in favor of the status quo, in terms of the way the administrative agencies work.

 

Caller 1:  Thank you.

 

Nick Marr:  So Eric, we don't have any questions right now. I do have a question, if you could speak a little bit about the future of RFRA, to what extent does this case have any future implications for RFRA or how it will be applied.

 

Eric Kniffin:  I don't see any clear implications about how RFRA will work going forward. I do think that Justice Alito's concurrence is a really important and clear outline of how RFRA works. I would imagine that that's going to get a fair amount of citations in RFRA cases, going forward. But given that the Court largely sidestepped RFRA, except to say that it was important and legitimate for the Departments to take it into account, I don't see how this case changes the way RFRA will work going forward.

 

Nick Marr:  All right. We'll go to our next caller.

 

John Vecchione:  Hi. John Vecchione, New Civil Liberties Alliance. I have two brief questions. First, Thomas said none of the parties raised non-delegation, but he went out of his way to put in how broad the delegation was to the agency here. Do you think that there's room for non-delegation arguments in the future in this case?

 

      And then second of all, what do you make of Kagan kind of inviting all the lower courts to keep the Little Sisters of the Poor in litigation again by saying that the regulation may not even pass rational basis tests? So those are my questions. Thanks.

 

Eric Kniffin:  Thank you. I don’t have much to say on the non-delegation part. I think the Court, consistent with its textualism in Bostock is right, here, that there was broad authority delegated to HRSA. And so one of the issues here, the dissent continues to steam, that the Departments were given the authority to say what must be covered by healthcare plans, but was not given any discretion to say who must cover them. And that discretion did not include the ability to give religious exemptions. One of the arguments along those lines was that HHS does not have any special authority to decide Religious Liberty issues. And so when Congress handed this over to HRSA, which is within HHS, Congress did not anticipate, and would not have thought, that in doing so, that it was giving HHS discretion in order to create any religious exemptions. I don't think that's a strong argument.

 

      The IRS, of all agencies, is charged with defining what counts as a church. So a lot of decisions and a lot of tax issues are hinged on some of these Religious Liberty distinctions. I certainly wouldn't go to officials within the Department of Treasury to understand fine distinctions as to what counts as a religion and what counts as a religious group, what counts as a religious order, and these sorts of things. And yet, Department of Treasury has had that authority for a long time. And so I don't think that's persuasive at all, that HHS would not have the -- Congress would have understood that it did not give HHS the authority to decide that.

 

      As to Justice Kagan's concurrence and the roadmap that she's giving litigants and the lower courts, I'm not terribly surprised. Again, this has been a fierce debate that has been going on for almost a decade. I think I said that there's been at least 28 cases briefed at the court of appeals, at least 23 written decisions. This is the fourth written decision by the Supreme Court in this controversy. I think there is an important balance for the Court in trying to decide how broad are its rulings going to be. But I do wish that the Court would have considered more, in this regard, the importance of having a sense of finality for religious employers. And the ongoing uncertainty that religious employers will have as a result of the Court's decision is unfortunate.

 

Nick Marr:  So we don't have any questions at the moment. Oh, one just popped up. We'll go to our caller.

 

Caller 1:  I'm back again, since we have the time. This is a very disturbing case for the reasons you've all discussed very well. Just to clarify my confusion again, and it relates to the Administrative Procedure Act. The initial decision to include contraception as one of the covered matters was not -- that was not made after complying with the APA. And then the first exemption, the narrow one that the Obama people put out. That was not in compliance with the APA. And then the Trump administration comes along and makes a broader exemption and is told by the Court that they've got to comply with the APA, and now they have to go on and face the hurdle of arbitrary and capricious in the Third Circuit, and then back to the Supreme Court, no doubt.

 

      So my question is this, using the DACA analogy, we had a situation where the Obama administration issued an edict regarding the DACA kids. The Trump administration withdrew the edict, without complying the APA. It was slapped down by John Roberts in the Supreme Court for failing to comply with the APA. So the two cases are just utterly at odds with each other. They make no sense, if you follow the logic of the DACA case.

 

Eric Kniffin:  I think the Third Circuit's decision below had more of the inconsistency of the DACA case, where you have this deep scrutiny on the procedural details of latter action that was meant to address what was regarded as an illegal initial reaction. So I think there is a lot of parallel here. I will clarify. I did not say, and I do not have a position on whether or not it was in violation of the APA for HRSA to issue this list back in 2011 without notice of requirement. Or for the Obama administration to issue its first religious exemption, as an interim final rule, that is to say, a rule that is effective immediately before the Departments receive notice and comment

 

      When I looked at this issue years ago, I thought, wow, agencies, I think, really do have a lot of broad discretion given them in the case law, in terms of determining what counts as good cause in order to go ahead with an IFR. Which made it all the more shocking to me when the Third Circuit and the Ninth Circuit held otherwise, 'cause I just don't see a lot of cases like that, where courts have been willing to jump in and overrule a Department's judgment that it was important that a rule go into effect immediately. So those rules did go into effect without notice and comment, but I would not go so far as to say that those rules were issued in violation of the Administrative Procedure Act.

 

Nick Marr:  We'll go to our next caller now.

 

Caller 2:  Can I take the discussion away from the APA, and take us back to, I think it was right after Hobby Lobby. And there was a lot of discussion and a lot of split between what people call a conservative block and the liberal block, about the concept of moral complicity. And I wonder, I guess, A) is that kind of a heart and soul if one ever gets beyond all this APA stuff, is that not the heart and soul of the controversy? And if so, are the votes there on moral complicity? Because I remember back post-Hobby Lobby, that seemed to be a very, very contentious issue between the left and the right.

 

Eric Kniffin:  That is a contentious issue, I agree. So I think one way to frame this debate is, some people have said, if a religious employer believes it, then that's the end of the story. That's, I think, one way to read Hobby Lobby. And I think there's been a considerable amount of push back against that, to say, well, wait a minute, if it's clearly factually wrong, then is it true that a religious organization can have a substantial burden based on a factual mistake. And so a court is not going to second guess the moral judgments of a religious body. But maybe they can second guess their factual claims. And so there's going to be factual predicates to substantial burden arguments.

 

      And so if you think back to the Thomas v. Review Board case, the Jehovah's Witness individual there claimed that there was a burden on his religious exercise because he was forced to make metal tubes that were going to be made into turrets for tanks. So there was an effort back in that case for, I think it was the State of Indiana, to bring forward its own Jehovah's Witness experts to say that that was not actually a substantial burden under the Jehovah's Witness teaching. And the Supreme Court said, no, no, no, no, no, we're not going to go there. We're not going to allow a battle with experts, and we're not going to second guess the sincere religious believes of an individual. And I think that's right. That is carried today in the way that these Religious Liberty claims are litigated.

 

      But suppose that Thomas would have been wrong as a factual matter. Suppose that the state was able to show that, in fact, those metal tubes were not going to be made into turrets of tanks. I think that factual mistake is relevant to the law suit. And so I would not go so far to say that even if there's a factual mistake, that religious organizations ought to win. And that is one of the important facts here, I mentioned this a little bit earlier, is that the Department of Labor has been allowed to claim that it has authority to unilaterally impose legal obligations on third-party administrators under the law. And that's something that's clearly false under ERISA.

 

      And so in this litigation, it has been the Departments that have been deferred to, absolutely, and without any second guessing, by the courts of appeals. And so, whereas a lot of people have been complaining that religious organizations should not be given this undue deference, here it has been the Departments that have been given undue deference in interpreting how these regulations work, and what they do and do not require of religious organizations.

 

      This is something that Justice Alito did not get into detail in in his concurrence. Justice Ginsberg claimed strongly in her dissent that the accommodation is an opt-out that requires nothing of religious employers. And again, that's simply not true under the law. ERISA's quite clear. The key provision is ERISA 316, which has to do with how plan administrators are appointed. And so if a third-party administrator is to have legal obligations under a plan, it is because the plan sponsor, the religious employer here, assigned those religious -- excuse me, assigned those religious -- excuse me again, those legal duties onto its third-party administrator. That's the only way it can happen. Those legal duties cannot be assigned by the government. It must be assigned by the plan administrator.

 

      The Department of Labor, if you just want to speak more broadly, does not have the authority to just change healthcare contracts. Healthcare contracts are written by plan sponsors under ERISA. And Department of Labor has, essentially, gotten away so far with claiming that, at least in this instance, it has the authority to unilaterally rewrite health insurance contracts. That's a silly claim. It's not based in law. And it is unfortunate that the Department of Labor has been given such extraordinary deference by the courts of appeals.

 

      So I do think there are important issues that have yet to be completely worked out. I do think that the Supreme Court was right in Hobby Lobby to say that issues of complicity, issues of what sort of connection, what sort of causal connection between an immoral result and a religious individual organization's actions. Those are moral questions and I don't think it's proper for courts to step in and say it's too tenuous. That's not a real moral objection. I don't think that's their role. But I do think that there is an important role for courts in looking at the facts and looking at the laws in these cases. And I think it's really unfortunate that the Supreme Court did not take an opportunity here to slap down the courts of appeals and their irresponsible deference to the Department of Labor in these cases.

 

Nick Marr:  We'll go to our next caller now.

 

Caller 3:  Yes, I came in late, so if others are waiting, you can certainly move to them. I had a question about how this could be considered to be arbitrary and capricious when the Court said that the comments were adequately considered and that the Department had appropriate concerns under RFRA as to what it should do. And so it struck me as strange that Justice Kagan should say that the arbitrary and capricious issue is still open. Thank you.

 

Eric Kniffin:  I believe the argument that Justice Kagan takes to be strongest is what she claims is a mismatch between the scope of the religious exemption and the problem the agency set out to address. And so her claim is that this is using a sledgehammer to kill a flea. That there isn't a big problem here in granting an almost limitless religious and also moral exemption to address that problem is disproportionate. That is, I think, the main argument she advances in her concurrence. We'll see how that fairs below. But that's, I think, what she thinks is the strongest argument as to why the religious and moral exemptions created by the Trump administration are arbitrary and capricious. It's 'cause they're too broad.

 

Nick Marr:  So Eric, we don't have any questions right now and we're coming up on three. I'll give you a chance for closing remarks.

 

Eric Kniffin:  Sure. So as I've tried to describe here, this has been an ongoing controversy since 2011 about whether and how women should have access to contraceptives through their employer's healthcare plans. This case has been about a lot of different things. It's about the Administrative Procedure Act. It's been about women's access to contraceptives. It's been about Religious Liberty. It's been about the balance between protecting Religious Liberty and third-party harms. I think throughout this almost 10 years that this has been going on, I think there are some important themes throughout this litigation. And one of those is about the confusion and the enormous uncertainty that is created when important government policy is advanced through administrative actions and instead of through statutes.

 

      Similar to, I think in Bostock, the argument that if there's an important government interest to be advanced, it should be advanced through legislation and not through the courts. So I think one of the sadness -- the things that is sad about this is, I think this case is, again, a testimony to the confusion and the burdens that fall on a lot of different parties and the work that is moved into the courts because legislatures do not take up important policy matters.

 

      I do think this is an important victory for Religious Liberty, at least for the time being. I am glad that the Little Sisters of the Poor were vindicated and there is some strong language, particularly the last two paragraphs of the Court's opinion in talking about the freedom that the regulations, as they're upheld here, gives to the Little Sisters to continue doing their work in helping the dying poor. It is a good thing that the Little Sisters, and other religious employers, are able to continue their work as of today without the burden of this mandate holding over their heads.

 

      And along with the ministerial exception case that was also decided today, I am grateful that the Supreme Court is making decisions that are creating room for religious organizations to operate in our society according to their convictions. I think that's an important principle imbedded in our First Amendment. And I think that principle was upheld and advanced in both decision -- both this Little Sisters decision and the ministerial exception decision issued today.

 

      So I wish the Court had gone broader in this decision. I wish that it had finally laid this issue to rest. But I am grateful for a 7-2 decision today that upholds a religious employer exemption and that, for the time being at least, protects religious employers from a mandate that has substantially burdened their religious exercise for a long time now.

 

Nick Marr:  Great. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at [email protected], and if you call back at this number at 3:30, we're having another Courthouse Steps Decision Teleforum on the case Eric mentioned, Our Lady of Guadalupe School. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.