How The National Review Pushed A Lie Into The Supreme Court Contraception Case

How The National Review Pushed A Lie Into The Supreme Court Contraception Case

››› ››› SHARON KANN

On March 23, the Supreme Court heard Zubik v. Burwell, a case brought by religious nonprofits challenging the process for opting out of the Affordable Care Act's (ACA) contraception mandate. Prior to oral arguments, the National Review falsely alleged that a leading expert on religious liberty law had "retracted" his support for the government's position. This falsehood was then apparently referred to during oral arguments to attack the ACA's accommodation for religiously affiliated organizations that seek an opt-out from required contraception coverage in their employer-sponsored health insurance.

Supreme Court Heard Arguments On ACA Opt-Out Process For Religious Nonprofits That Oppose Contraception Mandate

Supreme Court Hears Challenge To Process That Allows Religious Nonprofits To Opt Out Of Providing ACA-Mandated Contraceptive Coverage. On March 23, the Supreme Court heard arguments in Zubik v. Burwell: a legal challenge by religiously affiliated nonprofit employers who "object to a 2013 compromise offered by the Obama administration that allowed groups opposed to providing insurance covering birth control to comply with the law without actually paying for the required coverage":

The Christian groups object to a 2013 compromise offered by the Obama administration that allowed groups opposed to providing insurance covering birth control to comply with the law without actually paying for the required coverage.

Groups can certify they are opting out of the mandate by signing a form and submitting it to the government. The government then asks insurers to pick up the tab for contraception.

The challengers contend the accommodation violates their religious rights by forcing them to authorize coverage for employees even if they are not paying for it.

[...]

The federal government asserts it has a compelling interest in protecting the health of female workers, and that contraceptive coverage is part of that.  [Reuters, 3/23/16]

Religious Liberty Legal Expert: Opt-Out Does Not Force Nonprofits To "Contract, Arrange, Pay, Or Refer For Contraceptive Coverage." In the amicus brief filed on behalf of the Baptist Joint Committee in support of the government's accommodation, University of Virginia Law School Professor Douglas Laycock explained that the opt-out regulations "do not substantially burden" the petitioners. Quoting the specific regulations in question, Laycock argued that when the process for the opt-out was followed, employers would not be forced to "contract, arrange, pay, or refer for contraceptive coverage" -- allowing the government to fulfill its compelling interest in providing contraception "without petitioners' volition or participation." From the amicus brief of the Baptist Joint Committee (citations removed):

The regulations at issue here are complex; we will leave the details to the parties. The essence of it is that petitioners object to the government's regulation of the secular insurance companies with which they do business. Petitioners have no right to an exemption for their secular insurers. This is an important line that should not be crossed.

The government has carefully separated the insurers' provision of contraception from petitioners. The secular insurers are required to provide contraception with segregated funds. Petitioners do not claim that they are indirectly paying for contraception, and no economic impact can be traced to them, directly or indirectly.

The insurers are required to provide information about the availability of contraception in segregated communications.They are required to inform insured employees that their employers--petitioners here--do not "administer or fund contraceptive benefits." Ibid. Insurers are encouraged (by a safe harbor if they use the suggested language) to inform employees that their employers "will not contract, arrange, pay, or refer for contraceptive coverage," that the insurer will provide "separate payments" for contraception, that the employer "will not administer or fund" these payments, and that "any questions" should be directed to the insurer. The government pursues its goals without petitioners' volition or participation.

[...]

All religious organizations with religious objections, including non-profits and closely held for-profits, have been exempted from any obligation to contract, arrange, pay, or refer for contraception. With respect to churches and their integrated auxiliaries, the government does not require anyone else to provide free contraception to the affected employees. With respect to all other exempt employers, the government requires their secular insurers to provide free contraception separately. And to that end, it requires contact information for the insurers.

Even with appropriate deference to religious understandings, petitioners have not shown a substantial burden on the exercise of religion. Nor have they shown that the exemption for the insurers of churches and their integrated auxiliaries must be expanded to the insurers of all religious non-profits--and their argument to that effect threatens the existence of all specific religious exemptions. [Amicus Brief of the Baptist Joint Committee, 2/17/16]

National Review Initially Attacks Legal Expert -- Later Claims He "Retracted His Strange Claim" Of Support For The Opt-Out

National Review Claims Douglas Laycock "Effectively Retracted His Strange Claim" In Support Of The Opt-Out. The night before oral arguments in Zubik v. Burwell, National Review contributor Ed Whelan published an article alleging religious liberty legal expert, Professor Douglas Laycock, had "effectively retracted his strange claim" in support of the ACA's opt-out process. As evidence, Whelan pointed to an exchange between Laycock and other legal scholars in an online listserv about religion and law. In addition to claiming Laycock did not understand the opt-out regulations, Whelan quoted part of Laycock's email to suggest the professor had reversed himself and now believed the accomodation was a "substantial burden."  From National Review (emphasis added):

I'm pleased to highlight that, on the afternoon before Wednesday's Supreme Court oral argument, law professor Doug Laycock has effectively retracted his strange claim that the Little Sisters of the Poor and other petitioners challenging the HHS mandate accommodation don't face a substantial burden on their exercise of religion within the meaning of the Religious Freedom Restoration Act. More precisely, Laycock has clarified that his position to the contrary rests entirely on his (mistaken) understanding of the details of how the regulations operate--details that Laycock says in his amicus brief are too "complex" for him to go into and that (as point 3 of my post linked above shows) he clearly doesn't have a good grasp of. Specifically, Laycock now acknowledges (here) that if the religious nonprofits are correct that the accommodation requires them Little Sisters "to contract with their insurance companies to provide contraception, that would clearly be a substantial burden in my view." Further: "If they had to instruct or authorize their insurance companies to provide contraception at the insurer's expense, that is a closer case, but I am inclined to view that as a substantial burden." [National Review, 3/22/16]

National Review's Claim About Laycock's Retraction  Appears In Oral Arguments During Zubik v. Burwell

Christian Groups' Lawyer Echoed National Review's Falsehood That Laycock Retracted His Support And  "Admitted He Didn't Understand The Details" Of The Opt-Out. During oral arguments for Zubik v. Burwell, the petitioner's lawyer, Paul Clement, echoed National Review's false claim about Laycock's position. When asked by Justice Ruth Bader Ginsburg about the implications of Laycock's argument -- as presented in the amicus brief he filed on behalf of the Baptist Joint Committee -- Clement explained that although "Laycock is a great scholar" he had "admitted he didn't understand the details of this particular plan." Clement suggested that Laycock had reversed his position from the amicus brief because he "subsequently said that if there really was a requirement for these entities to contract, and there is, then even he would recognize there is a substantial burden." From oral arguments (emphasis added):

JUSTICE RUTH BADER GINSBURG: But going back to the line-drawing problem --and that is in the brief that's been mentioned several times, the Baptist Joint Committee -- our leading proponent of RFRA discusses this line-drawing problem. Do you just say that's wrong?

PAUL CLEMENT: No, I would say that that gets me to the next point. But if I could just finish this point for one second.

[...]

JUSTICE SONIA SOTOMAYOR: Would it have been better to say, churches, you've got to tell us you're going to claim an exemption, because not every church is religious, has the same religious tenets. So is that what you would have prefered? Is that the -- the sort of incentive you want to put out there? Is that the message you're giving, which is, there is lots of rules that apply differently to churches because we recognize they are special? Others may be special like them, but it's clear to tell what a church is.

CLEMENT: Let me answer both questions together. First of all, the exemption is not just limited to churches. It applies to religious orders. And my clients would have just stuck to their knitting and not helped the elderly poor, they could qualify.

But to answer both of these questions together, not all exemptions are created equal. And Professor Laycock is a great scholar, but even he admitted he didn't understand the details of this particular plan. He didn't get into that. He left it to the parties.

And I think he subsequently said that if there really was a requirement for these entities to contract, and there is, then even he would recognize there is a substantial burden. But the important point is not all exemptions are created equal. If you create an exemption for -- take the O Centro case. If the exemption for peyote had been for a Schedule 5 substance that was less dangerous, maybe the government would have won. [Oral Arguments for Zubik v. Burwell, 3/23/16]

But National Review Selectively Quotes Laycock Email To Suggest He Rejects His Previous Argument

Original Email Laycock Responded To Posed A Hypothetical About Accommodations "Beyond The ACA Cases" To Test The Boundaries Of Current Regulations. The National Review blog linked to Laycock's comments on an internet listserv as evidence of his supposed retraction of support for the government's position. The thread Laycock participated in, however, began with a hypothetical dealing with a distinct situation from Zubik v. Burwell. The author of this hypothetical noted that it was an idea that he was "presently testing out" to figure out "how broadly" Zubik's ruling "may affect religious accommodation beyond the ACA cases." [UCLA Religion Law Listserv, 3/21/16]

National Review Links To Laycock Email To Suggest He Rejects His Previous Argument In The Context Of Zubik. To suggest Laycock had "retracted" his support for the opt-out, National Review linked to one of his emails on the discussion thread about the hypothetical. According to Laycock, in Zubik there would only be a "substantial burden" on plaintiff's religious liberty "if the religious non-profits had to contract with their insurance companies to provide contraception," or "instruct or or authorize their insurance companies to provide contraception." But in the conclusion of the email that National Review did not quote, Laycock reaffirmed that there was no "substantial burden" in Zubik because "neither of those things is going on. And I think that is pretty clear" (emphasis added):

I think their argument that courts simply cannot question any claim that religious exercise is substantially burdened would, if adopted by the Court, discredit religious liberty claims, however this case should come out under a more appropriate analysis. And I think their argument that the exemption for churches and their integrated auxiliaries necessarily requires an exemption for all religious non-profits would, if accepted, make it far more difficult to enact religious exemptions for anybody. Those arguments are dangerous, whatever the result in this case.

But on the facts of this case, yes: If the religious non-profits had to contract with their insurance companies to provide contraception, that would clearly be a substantial burden in my view. If they had to instruct or authorize their insurance companies to provide contraception at the insurer's expense, that is a closer case, but I am inclined to view that as a substantial burden. But after the regulations were revised in response to the stay orders in Little Sisters and Wheaton College, I think that neither of those things is going on. And I think that is pretty clear. [UCLA Religion Law Listserv, 3/22/16]

Laycock Calls National Review's Claim That He "Retracted" His Opinion "Absurd"

Laycock Calls Out National Review, Says Claims He "Retract[s]" Are "Absurd." Following the publication of Whelan's National Review article, Laycock responded to the listserv again to make clear that that the National Review's allegations that his "exchanges" on the thread somehow "'retract' the BJC brief" are "absurd." After re-explaining his motivations in writing a brief in support of the opt-out, Laycock concluded that "there is no language of authorization in the letter that employees must send the government refusing to provide contraception":

Ed Whelan has now put up a post claiming that my exchanges with Eric "retract" the BJC brief. With respect, that is absurd.

What motivated the brief, and what is so dangerous to religious liberty, is the argument that courts cannot question claims of substantial burden on religion and the argument that narrow religious exemptions must inevitably be expanded to become all-inclusive religious exemptions. And if petitioners had confidence in their claim that the government is requiring them to authorize contraception coverage, they would not have had to make these far more dangerous arguments.

ERISA is not my field, and we will see what the Court says. But there is no language of authorization in the letter that employers must send the government refusing to provide contraception. [UCLA Religion Law Listserv, 3/23/16]

The Opt-Out Does Not Require Employers To "Contract, Arrange, Pay Or Refer Their Employees For Contraceptive Coverage"

Kaiser Family Foundation: Opt-Out Means "Employer Does Not Have To Contract, Arrange, Pay Or Refer Their Employees For Contraceptive Coverage." As explained  by analysis from the Kaiser Family Foundation, the opt-out process means that an "employer does not have to contract, arrange, pay or refer their employees for contraceptive coverage" under the ACA. Employees are still able to obtain contraceptives directly through their normal insurance provider, who must "provide separate coverage of contraceptives, at no cost, to the policyholders." From the Kaiser Family Foundation (citations removed):

There is also an "accommodation" available to nonprofit religiously-affiliated organizations and closely held for-profit corporations that object to contraceptive coverage on religious grounds Under the accommodation, an eligible employer does not have to contract, arrange, pay or refer their employees for contraceptive coverage. The health carrier used by the nonprofit employer or closely held for-profit employer must notify the policyholders, and provide separate coverage of contraceptives, at no cost, to the policyholders. Unlike an exemption, female employees and the female dependents covered by the plans of a nonprofit or closely held for-profit employer choosing an accommodation are entitled to the full contraceptive coverage from their insurance carrier. [Kaiser Family Foundation, 7/9/15]

New York Times' Linda Greenhouse: "All Relationship Between The Employer And The Coverage Is Severed." Linda Greenhouse, former Supreme Court reporter for the Times, warned that the Christian groups' argument that even the accommodation makes them complicit in the use of birth control, if accepted, allows "a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents to the benefits designed by a secular government to apply to all":

Is a "substantial burden" anything that a religious plaintiff says it is? That is the implication of the Eighth Circuit's decision and of the majority's hands-off stance in Hobby Lobby toward the plaintiffs' assertions about the chain of events that would make them unacceptably complicit in helping their employees get birth control. In her dissent for four justices in Hobby Lobby, Justice Ruth Bader Ginsburg said the connection was "too attenuated to rank as substantial." And that was for an arrangement under which, had the government prevailed, Hobby Lobby would actually have had to cover contraception -- while of course leaving it to its employees to decide whether to take advantage of the coverage. How much more attenuated is the connection for the religious nonprofits who say they can't even send a letter requesting the available opt-out.

In the appeal the Supreme Court is most likely to agree to hear, Roman Catholic Archbishop of Washington v. Burwell, the plaintiffs maintain that by offering to transfer the obligation from the employers to their insurers, the government proposes to "hijack" and "conscript" their health plans into service to the contraception mandate. But consider that under the rules of the available accommodation, all relationship between the employer and the coverage is severed: The employer has no obligation "to contract, arrange, pay, or refer for contraceptive coverage," and need not even notify its employees that coverage is separately available through the insurer.

[...]

It seems to me that the Roberts Court, having worked assiduously over the last 10 years to elevate the First Amendment's Free Exercise Clause at the expense of its First Amendment twin, the Establishment Clause, is now approaching a moment of truth. To accept the claims being made here is to plunge into a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents to the benefits designed by a secular government to apply to all. Such a "sweeping understanding" of the Religious Freedom Restoration Act, Solicitor General Verrilli's brief tells the court, "is inconsistent with our nation's traditions and finds no support in this court's precedents." [The New York Times10/29/15]

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