Missouri Federal District Judge Upholding HHS Contraception Mandate Shows What's At State ( Analysis )

The fight against the HHS contraception mandate lost a battle in a Missouri District Court. With all the action across the country no doubt we shall see victories and defeats as this works it's way through the system. Further of course even in this case there will likely be an appeal.

Still this defeat and how the Judge ruled shows exactly has drastic this is and what the stakes are. Prof Rob Vischer has a very good overview of what happened at Forcing a church to pay for its employees' abortions would not create a substantial burden on religious exercise. Discuss.

To summarize his points :



( 1) The  RFRA claim was dismissed under 12(b)(6) for failure to state a claim upon which relief can be granted, as the court categorically rejected the notion "that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff's religious exercise."

I find that very troubling and I suspect will be a good issue of appeal

(2)  O'Brien Industries is a for-profit entity, the plaintiffs (the company and its owner) are not entitled to any of the current or promised exemptions

(3) the court's reasoning disregarded institutional identity as bearing any relevance to the substantial burden analysis

(4)  the court mistakenly conflated free exercise as positive liberty with free exercise as negative liberty.  ....In other words, forcing an employer to pay for X does not burden his religious exercise any more than failing to ensure the availability of X would burden the employee's religious exercise.

(5 ) the court quickly dismissed the argument that the huge number of current exemptions precludes a finding that the mandate is generally applicable for purposes of free exercise analysis under Employment Division v. Smith.  ("The exemptions, for grandfathered plans, religious employers, and non-profits under the safe harbor do not undermine the general applicability of the regulations within the meaning of Free Exercise Clause jurisprudence.

I am very surpised thsi was dimissed so quickly and I think will be another good grounds for appeal. In fact it is sort the thing that might be the strongest argument to defeat the HHS mandate.

(6) Finally, if this court is correct in its analysis, then HHS could rewrite the regulations, remove any exemption for religious employers and add abortion to the list of covered services. The Catholic Church could be forced to pay for its employees' abortions without creating a substantial burden on religious exercise for purposes of RFRA, and that issue would be so straightforward that it could be handled on a 12(b)(6) motion.


That is indeed frightening.

Update- Prof Marc O. DeGirolami at St John's Law School has some commentary on some peculiar parts of the opinion. See Some Comments About the District Court Decision Dismissing the Mandate Claim. Here is a part:

........, I thought I’d offer two critical comments about the decision.




1. The court makes the following claim, supported directly by no case law at all: “Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.” There is a good reason why the court cites nothing for this proposition: it is not the law. The court goes on to discuss Wisconsin v. Yoder as somehow relevant to its view of the law. But nowhere in Yoder does the Supreme Court say that the burden on religious conscience *must* be supported by a willingness of the religious claimant to suffer criminal prosecution (or a fine or the loss of a benefit). There is a difference between a necessary and a sufficient condition, and it seems to me that this court has not perceived it. I should think it would be a major revision of existing law under RFRA to require that a religious claimant be willing to suffer criminal punishment in order to deem his or her objection a “substantial burden.”



2. Compare these two statements, both of which appear in succession in the opinion:



Statement #1: “[Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”



Statement #2: “RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.”



Here’s the comment. If “RFRA is a shield, not a sword,” then why should RFRA protect a religious organization’s right to “discourag[e] employees from using contraception.” Wouldn’t that be “forc[ing] one’s religious practices upon others.” Wouldn’t such advocacy on the part of the employer, if protected by RFRA, be an example of the use of RFRA as “a sword”? And what exactly is the scope of the argument? Can the Catholic Church use RFRA as a “sword” to protect its right not to offer contraception services in its health plans? Or is this ill-conceived shield/sword metaphor limited to the context of secular employees who make religious freedom claims under RFRA? .