Michael Perry recently posted (here) Professor Fred Gedicks' response (here) to two posts on MOJ, one by Father Bob Araujo, S.J. (here) and the other by Rick Garnett (here). Each of these posts offered a critique of Gedicks’ issue brief entitled With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate (here).
There are many things to criticize about Gedicks’ paper, some of which have been pointed out by other commentators. For example:
(1) As a rhetorical matter Gedicks repeatedly refers to the exercise of an employer’s right to religious liberty in not providing contraceptives as “interfere[ing] with the liberty of others” (p.1); “intruding upon the religious liberty of employees” (p. 5); that the employer is in fact “imposing” its beliefs on non-believers, adherents of other faiths, and those who interpret the requirements of the employer’s faith differently (id.). Gedicks concludes that religious liberty “is not the right to impose one’s religion on others” (p. 18). Yet these statements are merely rhetorical. He fails to explain how an employer’s actions can constitute the imposition of religion and thus a violation of the employee’s religious liberty where the employee remains perfectly free to purchase and use contraceptives. If an employer’s refusal to subsidize a specific activity to which it objects on religious grounds constitutes the imposition of its religious beliefs on an employee, then employers routinely “intrude upon the religious liberty of employees” whenever they abstain from providing direct financial support for an employee’s chosen activity. This is an extravagant proposition for which Gedicks offers no support.
(2) Moreover, the religious liberty protected by the First Amendment and the Religious Freedom Restoration Act is freedom from interference by the state. Where an employer has decided to refrain from paying for contraceptives under its health plan, state action is entirely absent. Nor does he explain how a government exemption to the law constitutes state action, Gedicks’ passing eference to Estate of Thornton v. Calder notwithstanding.
(3) Gedicks rather casually dismisses the argument that the fact that thousands of health insurance plans are “grandfathered in” under the ACA and so exempted from the requirement that they provide “preventive services” including contraceptives. If, however, as the government estimates, somewhere in the neighborhood of 190 million Americans fall within the ambit of plans that are "grandfathered in” such that these plans need not comply with the contraceptive mandate, it is difficult to see how the government’s interest in mandating the provision of contraceptives by religious employers is truly “compelling.” Demonstrating that the government’s alleged interest is in fact “compelling” is of course necessary for the law to withstand a challenge under RFRA.
(4) Many commentators have argued that the government could have fulfilled its interest in ensuring that contraceptives be made available to women of child-bearing years at no expense through some alternate means that respected the religious liberty of religious employers. For example, the government could have provided these contraceptives to women directly or through a government sponsored insurance program. For Gedicks, however, the “least restrictive means” requirement is of no help to religious employers. He insists that “a religious person’s right to an exemption does not include the right to demand that the government pay for the exemption” (p.17). He cites no authority for this proposition, and for good reason since this is precisely wrong. The existence of an alternate route to achieving its preferred policy objective may require the government to undertake a method that is more costly than other means that impinge upon religious liberties. As a broader point one might add that the recognition of religious liberty interests usually involves the imposition of some costs, including costs on third-parties, but this is no less true of efforts to uphold constitutional rights in other settings.
(5) Gedicks is eager to find United States v. Lee dispositive of the claim that the mandate forces religious employers to subsidize contraceptive use to which they object on religious grounds. For Gedicks, forcing an employer to pay for contraceptives is “virtually the same” as the “compelled payment of a netural and general tax” some portion of which goes to fund activities to which the
taxpayer objects on religious grounds. As Mike Moreland has noted (here) “Lee involved a general tax to finance a government program (there Social Security, but the same logic would apply to national defense or other examples), while the HHS mandate is a requirement that employers include a cost-free benefit in their health plans (or be fined if they don't provide coverage at all). Surely that is a distinction with respect to the burden on religious free exercise and the ease with which the government can accommodate religious objectors.”
(6) Gedicks’ claim that the burden of the contraception mandate “approaches the vanishing point” (p. 13) because religious employers “already cover the mandated contraceptives for treatment of conditions unrelated to preventing pregnancy” is simply wrong. Religious employers are opposed to contraceptive practices, and they object to being forced to support these practices under the mandate through their insurance plans. They are not opposed to making the same prescription drugs available under these plans when used for a purpose to which they have no religious objection.
I could go on, but suffice it to say that there are many grounds on which to find fault with Gedicks’ paper.
What I want to focus on here, however, is Gedicks’ response to the MOJ posts wherein he argues that it is wrong to “conceptualize the mandate” as a “subsidy” for contraceptives. To show why this is so, Gedicks asks us to imagine two extremes.
On the one hand, Gedicks argues that an employer paying an employee a wage or salary above subsistence “creates the possibility of discretionary employee spending” and thus the possibility that the employee may use this money to purchase contraceptives. Yet no one argues that “religious employers have a free exercise right to prohibit employees from buying contraceptives with their wages or salary.”
On the other hand, Gedicks asks us to “imagine a law mandating an unambiguous subsidy of contraceptive use, such as a legal requirement that employers purchase vouchers good only for the purchase of contraceptives, and then distribute these free of charge to their employees.” Although Gedicks does not expressly say so, presumably such a law would violate the idea of religious freedom protected under RFRA and the First Amendment prior to Employment Division v. Smith.
In his original paper Gedicks articulated the same point this way (p. 11): “It is axiomatic that religious employers have no religious liberty interest to limit the spending of employee compensation to conform to the employer’s religious sensibilities. Health care insurance coverage is simply employee compensation. Instead of compensating employees entirely in wages or salary, the employer pays a reduced wage or salary plus a health insurance benefit.”
In his response to the MOJ posts Gedicks is somewhat more modest. Instead of declaring that health insurance is “simply” employee compensation, he concludes that “[w]hile the benefit created by the contraception mandate is not identical to wages or salary, it is close” in part because “health insurance benefits are a form of employee compensation which, like wages and salary, employees may consume in a variety of ways as they wish, free of employer restriction.”
Gedicks is right to draw a comparison between salary and insurance benefits, but he is wrong to conclude that the latter are equivalent to the former. Instead, insurance benefits more closely resemble the voucher that he implicitly concedes is a violation of religious liberty.
Gedicks is correct that health insurance under the mandate is not “good only for the purchase of contraceptives” (my emphasis). It is not limited to prescriptions of Yaz and Ortho Tri-Cyclen. Instead, the benefits of health insurance can take many forms. Health insurance can be used to obtain wellness examines, flu shots, and appendectomies. But these health benefits are not interchangeable. An insulin shot is no substitute for kidney dialysis treatment, and chemotherapy
cannot take the place of cardiac bi-pass surgery.
Furthermore, money can be used to purchase literally anything that is available on the market. In that sense it is pluripotent.
Health insurance, by contrast, only provides the employee with those specific benefits that are covered under the plan. As such, the concrete benefits of health insurance can take many forms, but not any form. Although employees may consume health insurance “in a variety of ways” they may not consume it in all ways. That is to say, the benefit of health insurance is not pluripotent like money. It is instead like a series of binary choices: appendectomy or not; dialysis treatment or not; bi-pass surgery or not.
Gedicks’ analogy to employee salary would work if in place of the present HHS mandate the law instead required an employer to provide an employee with a voucher that the employee could then use to freely purchase whatever insurance plan suited her needs as judged by the employee herself. Obviously, that is not the insurance scheme enacted under the ACA.
The payment of money as salary or wages does indeed offer an unlimited set of choices as to how that money is to be spent. The employer might, in the exercise its own judgment, find some of these choices to be moral and others to be immoral. None of these uses, however, is specifically offered, suggested or facilitated by the employer.
Unlike the payment of salaries and wages, the mandated benefit requires that the employer set up a health insurance program which includes a single binary choice that the employer considers to be immoral. The government is requiring the employer to, in effect, place the following choice before the employee: you may choose to use contraceptives for free under our plan, or you may forgo that option. This aspect of the mandated health coverage does not present a universe of choices for which the employer has no accountability.
Since the objecting employer views contraceptive use (including, in some circumstances, uses that are abortifacient in nature, or that facilitate sex outside of marriage) as immoral, this binary choice involves the employer in the immoral conduct in a way that a salary payment does not. In contrast to a salary check that is cashed and then spent however the employee chooses, the health plan involves on-going facilitation – negotiating plans, creating resources to explain plan details, conducting workshops, troubleshooting for employees, maintaining connections to the insurance plan, etc. – all of which take place under the auspices of the employer itself, and at its expense.
If instead the employer objected on religious grounds to gambling, or pornography, or alcohol consumption, and the state required the employer to provide each employee with a voucher that could only be used on the state lottery, or a special allowance earmarked for the exclusive purchase of pornographic materials, or a “booze bonus” good only for the purchase of intoxicating beverages, the employer would be made to violate its religious principles by making a specific (objectionable) benefit available to each employee. The individual’s decision – the binary choice – to make use of or decline the benefit that the employer is compelled to make available does not somehow eliminate the fact that the employer must invite the employee to this specific transaction rather than leave the employee free to do what she wills with her salary (that is not designated for any particular benefit) in the tangle of the marketplace.
The HHS contraceptive mandate does precisely what these hypothetical vouchers would do. As such, it is equivalent to the example that Gedicks identifies as a violation of religious liberty – “a law mandating an unambiguous subsidy of contraceptive use.”
In its opinion granting defendants’ motion to dismiss in O’Brien v. U.S. Dept. of Health & Human Services, the district court said (p. 11, here) that “plaintiffs remain free to exercise their religion by not using contraceptives and by discouraging employees from using contraceptives.” In doing so, the court recognized that the simple act of sharing one’s religious beliefs – in this case, discouraging the use of contraceptives – is a part of the employer’s religious liberty. Indeed, living one’s religious faith with integrity – not being compelled by the government to undermine that faith by offering the very thing to which one objects – is at the heart of religious freedom.
Given this acknowledgment, it is difficult to see how the HHS mandate is anything other than a “substantial burden” on religious liberty.
