At bottom, my colleagues’ position is that the states’ reliance on federal funds limits Congress’ authority to alter its spending programs. This gets things backwards. Congress, not the states, is tasked by the Constitution with spending federal money in service of the general welfare. And each successive Congress is empowered to appropriate funds as it sees fit. When the 111th Congress reached a conclusion about the portion of the nation’s poor that should qualify for Medicaid, a portion larger than a predecessor Congress covered, the later Congress abridged no state’s right to “existing” or “preexisting” funds. For, in truth, there are no such funds. There is only money states anticipate receiving, but can scarcely insist on receiving, from future Congresses.
Seven members of the Court, however, buy the argument that prospective withholding of anticipated funds exceeds Congress’ spending power. Given that holding, I entirely agree with the Chief Justice as to the appropriate remedy: it is to bar the withholding found impermissible, not to scrap the expansion altogether. This Court has many times explained that when it confronts a statute marred by a constitutional infirmity, its endeavor must be to salvage, not demolish, the legislation. The Court does that by declaring the statute invalid “to the extent that it reaches too far, but otherwise [leaving the statute] intact.” Because the Court finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any state affirming its willingness to accept the uncommonly generous federal grant.
So, in the end, the Affordable Care Act survives largely unscathed. But the Court’s Commerce and Spending Clause jurisprudence has been set awry. My expectation is that the setbacks will be temporary blips, not permanent obstructions.
Bench Announcement
Burwell v. Hobby Lobby Stores, Inc.
Conestoga Wood Specialties Corp. v. Burwell
June 30, 2014
Hobby Lobby and Conestoga Wood Specialties each sued Sylvia Burwell, the secretary of the Department of Health and Human Services (HHS), the federal agency that administers the Affordable Care Act (ACA), also known as “Obamacare.” The ACA requires employer health plans to furnish preventive care and screenings for women. HHS, in regulations implementing this provision, specifies that employer plans must provide women with coverage for the twenty contraceptive methods approved by the Food and Drug Administration, but exempts religious employers, such as churches and religious nonprofit organizations, from the requirement. Hobby Lobby and Conestoga are both for-profit corporations and therefore not exempt under the HHS regulation. The main stockholders of these corporations objected on religious grounds to providing insurance for approved contraceptives that operate post-conception. They asserted that their corporations are protected under the provisions of the Religious Freedom Restoration Act (RFRA) of 1993. RFRA prohibits the federal government from “substantially burden[ing] a person’s exercise of religion” unless it “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” Hobby Lobby prevailed in the Tenth Circuit, Conestoga lost in the Third Circuit, and the Supreme Court granted review to resolve the conflict between the circuits.
The Supreme Court split five to four, with Justice Alito delivering the opinion of the Court. Agreeing with the Tenth Circuit, the Court held that corporations (at least if they are “closely held” corporations, meaning most of their shares are held by a family or a small group of investors) are “persons” under RFRA, that HHS’s contraceptive mandate substantially burdened their exercise of religion, and that, even assuming the government’s interest in guaranteeing employees cost-free access to the four objectionable contraceptives is a compelling one, it had failed to show that the contraceptive mandate was the least restrictive means of furthering that interest. Justice Ginsburg delivered the following dissent announcement from the bench.
Under the Affordable Care Act, employers with health plans must provide women with access to contraceptives at no cost to the insured employee. The Court holds today that commercial enterprises, employing workers of diverse faiths, can opt out of contraceptive coverage if contraceptive use is incompatible with the employers’ religious beliefs. When an employer’s religious practice detrimentally affects others, however, the First Amendment’s Free Exercise Clause does not require accommodation to that practice. Because precedent to that effect is well established, the Court rests its decision not on the Free Exercise Clause of the Constitution, but solely on the Religious Freedom Restoration Act (RFRA).
Justices Breyer, Sotomayor, Kagan, and I find in that act no design to permit the opt-outs in question. RFRA targeted this Court’s decision in a particular case, one holding that Native Americans could be denied unemployment benefits because they had ingested peyote at, and as an essential part of, a religious ceremony. Congress sought to override that decision and to restore by statute the respect for religious exercise as it existed before the sacramental peyote decision was rendered. Nothing more.
Reading the Act expansively, as the Court does, raises a host of “Me, too” questions. Can an employer in business for profit opt out of coverage for blood transfusions, vaccinations, antidepressants, or medications derived from pigs, based on the employer’s sincerely held religious beliefs opposing those medical practices? What of the employer whose religious faith teaches that it is sinful to employ a single woman without her father’s consent, or a married woman, without her husband’s consent? Can those employers opt out of Title VII’s ban on gender discrimination in employment? These examples, by the way, are not hypothetical.
A wise legal scholar famously said of the First Amendment’s free speech guarantee: “Your right to swing your arms ends just where the other [person’s] nose begins.” The dissenters believe the same is true of the Free Exercise Clause, and that Congress meant RFRA to be interpreted in line with that principle.
The genesis of the contraceptive coverage regulations should have enlightened the Court’s decision. “The ability of women to participate equally in the economic and social life of the Nation,” the Court appreciated over two decades ago, “has been facilitated by their ability to control their reproductive lives.” Congress acted on that understanding when it called for coverage of preventive care responsive to women’s needs as part of the Affordable Care Act, a nationwide insurance program intended to be comprehensive.
Carrying out Congress’ direction, the Department of Health and Human Services (HHS) promulgated regulations requiring group health plans to cover, without cost-sharing, all contraceptives approved by the Food and Drug Administration (FDA). The scientific studies informing the HHS regulations demonstrate compellingly the benefits to public health and to women’s well-being attending improved contraceptive access.
Notably, the Court assumes that contraceptive coverage under the Affordable Care Act furthers compelling interests. The Court’s reasoning, however, subordinates those interests. Nor is the subordination limited to the four contraceptives Hobby Lobby and Conestoga object to. At oral argument, counsel for Hobby Lobby forthrightly acknowledged that his argument “would apply just as well” if an employer’s religion ruled out use of every one of the twenty contraceptives the FDA has approved.
A threshold issue the parties dispute: does RFRA, which speaks of “a person’s” exercise of religion, even apply to for-profit corporations, for they are not flesh-and-blood “person[s],” they are artificial entities created by law. True enough, the First Amendment’s free exercise protections, and RFRA’s safeguards, shelter not only natural persons, they shield as well churches and other nonprofit religion-based organizations. Yes, the Court’s decisions have accorded “special solicitude” to religious institutions. But until today, no similar solicitude has been extended to for-profit commercial entities.
The reason why is not obscure. Religious organizations exist
to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of for-profit corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the workforce of for-profit corporations. The difference between a community of believers in the same religion and a business embracing persons of diverse beliefs is slighted in today’s decision.
Justice Sotomayor and I would hold that for-profit corporations should not be equated to nonprofits existing to serve a religious community, and would place them outside RFRA’s domain. Justices Breyer and Kagan would not decide the threshold question whether for-profit corporations or their owners can bring RFRA claims, and therefore do not join this part of the dissenting opinion. All four of us, however, agree in unison that RFRA gives Hobby Lobby and Conestoga no right to opt out of contraceptive coverage.
The Court rejects the contraceptive coverage requirement on the ground that it fails to meet RFRA’s least restrictive means test. But the government has shown that there is no less restrictive, equally effective means that would both satisfy the challengers’ religious objections and ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well-being.
Well, let the government pay for the contraceptives (rather than the employees who do not share their employer’s faith), the Court suggests. The Care Act, however, requires coverage of preventive services through the existing employer-based system of health insurance, not through substitution of the government (in effect, the general public) as payor.
And where is the stopping point to the “let the government pay” solution? Suppose it offends an employer’s religious belief to pay the minimum wage, or to accord women equal pay for substantially similar work. Such claims, in fact, have been made and accepted as sincere. Does it rank as a less restrictive alternative to require the government to provide the pay to which the employer has a religion-based objection?
Perhaps because these questions are not so easy to answer, the Court rests on a different solution: extend to commercial enterprises the accommodation already afforded to nonprofit religion-based organizations. This extension solution was barely addressed in the parties’ briefs. Asked about it at oral argument, Hobby Lobby’s counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.”
Ultimately, the Court hedges. It declines to decide whether the extension solution “complies with RFRA for purposes of all religious claims.” The fatal flaw, in any event, bears reiteration. The extension cure would equate two dissimilar categories: on the one hand, commercial businesses like Hobby Lobby and Conestoga, whose workforces, by law, are open to persons of all faiths, and on the other, nonprofit organizations designed to further the mission of a particular community of believers.
A pathmarking 1982 decision RFRA preserved is highly instructive in this regard: United States v. Lee. Lee rejected the exemption claim of an Amish entrepreneur whose religious tenets were offended by the payment of Social Security taxes. Tax cases are in a discrete category, today’s Court responds. But Lee made two key points that cannot be confined to tax cases. First, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice,” the Lee Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes . . . binding on others in that activity.” Second, the Lee Court said, allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Working for Hobby Lobby or Conestoga, in other words, should not deprive employees holding different beliefs of the employer-insured preventive care available to workers at the shop next door.
Hobby Lobby and Conestoga, as shown by the real cases I described, hardly stand alone as commercial enterprises seeking religion-based exemptions from generally applicable laws, among them, laws prohibiting discrimination in the workplace. How is the Court to divine when a religious belief is feigned “to escape legal sanction,” or which genuine beliefs are worthy of accommodation and which are not? Those questions are all the more perplexing given the majority opinion’s repeated insistence that “courts may not presume to determine . . . the plausibility of a religious claim.”
In sum, today’s potentially sweeping decision minimizes the government’s compelling interest in uniform compliance with laws governing workplaces, in particular, the Affordable Care Act. And it discounts the disadvantages religion-based opt-outs impose on others, in particular, employees who do not share their employer’s religious beliefs.
Our cosmopolitan nation is made up of people of almost every conceivable religious preference. In passing RFRA, Congress did not alter a tradition in which one person’s right to free exercise of her religion must be kept in harmony with the rights of her fellow citizens, and with the common good.
For the reasons I summarized, all of them and others developed in the dissenting opinion, I would reverse the judgment of the Tenth Circuit and affirm the judgment of the Third Circuit.
Bench Announcement
Gonzales v. Carhart
Gonzales v. Planned Parenthood
Wednesday, April 18, 2007
Gonzales v. Carhart upheld the Partial Birth Abortion Act of 2003, a federal law that criminalizes a procedure referred to as “intact dilation and evacuation,” or “D&E,” one of several abortion methods used by doctors after the twelfth week of pregnancy. In this first abortion case decided after Sandra Day O’Connor retired from the Court, the Justices upheld the Act, splitting five to four. Justice Kennedy wrote the majority opinion, joined by Chief Justice Roberts, then in his second Term as Chief Justice, Justice Scalia, Justice Thomas, and Justice Alito, the Court’s newest member and O’Connor’s replacement.
The majority opinion claimed to be faithful to the Court’s precedents on the right to abortion, despite an earlier case in which the Court declared a state ban on D&E unconstitutional. That earlier case, Stenberg v. Carhart (2000), had also been decided 5–4, but Justice Breyer, joined by Justices Stevens, O’Connor, Souter, and Ginsburg, had ruled the statute unconstitutional on its face. The reason: it did not contain an exception allowing a doctor to perform the D&E procedure if it was “necessary, in appropriate medical judgment, for the preservation of the . . . health” of the pregnant woman. The Partial Birth Abortion Act also lacked the woman’s health exception, but Justice Kennedy’s opinion in Gonzales, by contrast to Justice Breyer’s in Stenberg, emphasized not the absence of an exception to protect the woman’s health, but the government’s “legitimate and substantial interest in preserving and promoting fetal life,” which, it said, existed throughout a woman’s pregnancy. Justices Thomas and Scalia issued a concurring opinion reiterating their view that Roe v. Wade and its progeny should be explicitly overruled.
The majority’s claim of adherence to precedent was disputed by the four dissenters, in an opinion by Justice Ginsburg. Underscoring their mutual concern, Justice Ginsburg in her bench announcement “strongly” dissented from the majority opinion.
Four members of this Court, Justices Stevens, Souter, Breyer, and I, strongly dissent from today’s decision.
Fifteen years ago, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7-to-2 judgment, rendered nearly two decades earlier, in Roe v. Wade. One of the clarifications Casey provided concerned the state’s unconditional obligation to safeguard a woman’s health. At all stages of pregnancy, the Court reconfirmed, state regulation of abortion procedures must protect “the health of the woman.”
In reaffirming Roe, the Casey Court described the centrality of “the decision whether to
bear . . . a child” to a woman’s “dignity and autonomy,” her “destiny,” her “conception of . . . her place in society.” Challenges to undue restrictions on abortion procedures, the Court comprehended in Casey, do not seek to vindicate some vague or generalized notion of privacy. Rather, they home in on a woman’s autonomy to decide for herself her life’s course, and thus to enjoy equal citizenship stature.
In keeping with this understanding of the right to reproductive choice, we have consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard not only a woman’s existence—her life—but her health as well. Faithful to precedent unbroken from 1973 until today, the Court held seven years ago in Stenberg v. Carhart that a state statute banning the very procedure at issue today—intact D&E—was unconstitutional in part because it lacked a health exception. If substantial medical authority maintains that banning a particular abortion procedure could endanger women’s health, we held, a health exception cannot be omitted by the legislators.
Despite our unambiguous ruling, Congress passed the Partial-Birth Abortion Ban Act—without an exception for women’s health—a ban that would operate nationwide. After lengthy trials and thorough review of volumes of medical evidence, each of the district courts to consider the statute found that it was unconstitutional for the same reason: significant medical authority identified intact D&E as the safest procedure for some women.
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