The HHS mandate challenge: Let’s pray the Obama administration acts in good faith

This photo taken Friday, Oct. 3, 2014, shows the U.S. Supreme Court in Washington. A Supreme Court term that is starting Monday, Oct. 6, 2014, with a lack of headline-grabbing cases may end with a blockbuster that helps define the legacy of the court under Chief Justice John Roberts. That's because the justices appear likely to take on the issue of same-sex marriage and decide once and for all whether gay and lesbian couples have a constitutional right to marry. (AP Photo/Susan Walsh) (The Associated Press)

The appellate court decisions that upheld the "contraceptive mandate" of the Department of Health and Human Services have been given the judicial heave ho.  Those rulings, which supported the administration’s attempt to force non-profit religious groups to violate our faith, were vacated by the Supreme Court’s Zubik v. Burwell decision last month – rendering them null and void.

The Supreme Court’s eight justices had asked both sides in the Zubik case to describe a scenario of health insurance coverage that would be satisfactory to their concerns. Both sides having identified a workable scenario, the high court then told us all, "Then go see if you can work it out."

Will the officials at the Department of Health and Human Services now draft a new regulation that actually respects religious liberty by not requiring us to be complicit in the provision of abortion-causing drugs to our employees?  Or will they once again try to punish religious charities for practicing our faith?

And beyond whatever revision of the HHS mandate that the president’s bureaucrats devise, there are legal issues that the Supreme Court did not directly address.  Those issues are now again before the judges in seven cases, spanning four appellate courts, who may or may not be disposed to protect religious rights.

But it is our case, itself a consolidation of lawsuits brought by Priests for Life and the Archdiocese of Washington in the U.S. Court of Appeals for the D.C. Circuit, that is worthy of the closest scrutiny.

After we appealed to the Supreme Court, Solicitor General Donald B. Verrilli, Jr., in the government’s initial brief to the Supreme Court, stated that our case was “a more suitable vehicle” than the others for the justices to use in deciding the legality of the HHS mandate and its accommodation.  Solicitor General Verrilli noted at the time that our appeal “presents all of the health coverage arrangements” and “all issues” that could be contested under the Religious Freedom Restoration Act (RFRA).

This was important.  Out of the seven lawsuits that were eventually accepted by the Court and which are now back in their respective appeals courts, only the D.C. Circuit case included all of the necessary elements for a thorough review and decision.

For instance, there are three types of insurance arrangements that have been the subject of HHS mandate lawsuits – insured, self-insured, and self-insured church plans.

Insured plans are typical ones where an organization contracts with an independent company to provide health insurance to its employees.

A self-insured plan is where the organization underwrites its own insurance, but hires an independent company to administer the coverage.

A self-insured church plan is the same as a self-insured plan, except that the organization underwriting its own insurance is a church as defined by the Internal Revenue Code.

Our consolidated case in the D.C. Circuit is the only one of the seven considered by the Supreme Court to include organizations with each of these plans. And as Solicitor General Verrilli noted, the HHS mandate’s accommodation “operates somewhat differently with respect to those different plan types, and some judges have concluded that the differences are material to the RFRA analysis.”

Further, there are three key elements in RFRA that courts may address. Again, our consolidated lawsuit is the only one that addresses them all.

In the RFRA-based challenges to the HHS mandate, courts must consider whether the government is placing a “substantial burden” on our groups.  If the courts so find, the HHS regulation then comes under “strict scrutiny” – does it further a “compelling interest” of the government and is it the vehicle that’s “least restrictive” of religious rights to further that interest?

Curiously, when the U.S. Court of Appeals for the D.C. Circuit ruled against us, it basically redefined the government’s “compelling interest.”

While the government argued that its dual objectives in issuing the mandate were to further “public health and gender equality,” the D.C. Circuit declared that the government’s interest was actually in providing “seamless” health insurance coverage for contraceptives.

While a different circuit court had held that, for instance, the government could achieve its objectives through tax incentives to contraceptive and sterilization suppliers and/or consumers, the DC Circuit tried to say that increased contraceptive access could only be achieved by mandating contraceptive coverage in our own health insurance plans.  By using this redefinition, “seamless” insurance coverage suddenly became the government’s “compelling interest” and the “least restrictive means” of furthering that interest, thereby satisfying RFRA’s tests.

The oral arguments made before the Supreme Court circled around this point.  Both Chief Justice John Roberts and Paul Clement, who was arguing for the religious non-profit groups, noted the inconsistency of the government’s “seamless coverage” argument.  After all, if the administrationsays that its scheme of providing abortifacients to religious non-profit group employees is “seamless,” how can it claim that we are not part of its fabric?

The DC Circuit, in its now-vacated 2014 opinion in favor of the government, ignored this contradiction and basically held that the government’s interest was compelling because the government said it was. With this as our past, the future could be interesting.

If it wants, the government could resolve the HHS mandate lawsuits quickly.  After all, it admitted in its supplemental brief to the Supreme Court that an accommodation that truly protects the rights of religious non-profit groups is feasible. But then again, such a solution was feasible over four years ago, too.

We pray that the administration acts in good faith.