Mirror of Justice

There has, in recent days, been a lot of very thoughtful blogging and close analysis of the HHS-mandate cases and the issues they raise.  (Eugene Volokh's impressive series of posts -- contained in one document here; Marty Lederman's posts at Balkinization; Micah Schwartzman's, Rich Schragger's, and Nelson Tebbe's posts at the same place; and of course our own Marc DeGirolami's recent contributions.  And many more!)

I've also blogged and op-ed-ed (more than) my fair share on the issue over the last two years.  I still think that what I wrote, just over two years ago, in this USA Today piece is (mutatis mutandis) right, though I was thinking more of religious employers and less of commercial employers like the ones involved in the cases now before the Court.

As I (still) see it, the mandate -- and also the "accommodation" -- substantially and unnecessarily burdens the religious exercise of at least some employers / institutions.  And, I am not moved by the argument (pressed by Nelson Tebbe, Fred Gedicks and others) that it would constitute an "establishment" of religion to add objecting religious employers to the group of employers who are already not subject to the contraception coverage mandate and to provide the coverage and services in question to those employers' employees via another mechanism.  

But, I want here to raise a not-particularly-technical or doctrinal question that has been on my own mind as I think about the cases:  Let’s put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation.  Let’s put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance.

Let’s say we’ve decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits.  We know that some employers – not many, but some; primarily religiously affiliated, but not all – will have religion-based objections to providing coverage that includes these services to their employees.   Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors?

Perhaps no such alternative mechanism or route – one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible.   Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible.  We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage.  But, again, I assume such an alternative could have been designed.  (If I’m wrong about this, then the objecting employers are, it seems to me, in a weaker position.)

Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind:  We might think that accommodating these employers would undermine certain public commitments or shared values that should not be undermined, or that accommodating them would “express” something (an endorsement of patriarchal or outdated views regarding sexuality, perhaps) that we don’t want the government to express.  I don’t think that accommodating objecting employers would do either of these things, but maybe some of us disagree.  If we saw the objecting employers as aligned with interests and aims that we find repugnant, we might not want to accommodate them just because, well, they are on the side of things we find repugnant. 

Or, maybe, we would decline – even if we could go back in time and re-draft – to accommodate objecting employers because we think religious objections to generally applicable laws should not be singled out for solicitude unless such singling out is somehow required by the Constitution.  Or, maybe we think that, categorically, commercial (or non-house-of-worship) employers do not and cannot “exercise religion” so cannot be burdened in ways that call for accommodation.

Again, I don’t mean here to engage the important and interesting analysis that others are developing and sharing regarding the RFRA claims or Establishment Clause case law.  I also mean to put aside questions one might have about the wisdom of the policy judgment that the law should require all of the services in question to be included in employees' health-care plans or in plans offered through the exchanges.  I'm thinking, now, more in terms of “how should our political community handle what appears to be the tension between our desire to secure and provide a certain benefit and the religion-based concerns of some to a particular mechanism for providing and securing that benefit?”  If an accommodation (that does not impose burdens on the employees of objecting employers and that does not give an unfair windfall to those employers) was, and remains, feasible, then why *shouldn’t* we provide it?