- - Tuesday, May 10, 2016

ANALYSIS/OPINION:

The Little Sisters of the Poor and the government have filed their final briefs in the longstanding tussle over the administration’s contraception mandate. The briefs respond to a highly unusual order from the Supreme Court, issued days after the oral arguments, which asks the parties to consider again whether the government can improve access to contraceptives and abortion-inducing drugs without forcing religious employers to violate their faith. While the parties still aren’t seeing eye to eye, the court’s order gives hope that it may yet find a solution that works for both parties.

After listening to the oral arguments, one might think the parties are stuck. Solicitor General Donald Verrilli doggedly insisted that women’s access to contraceptive coverage must be “seamless” — that is, it must come through the nuns’ own health plan. The nuns, understandably, object. They explain that it’s one thing for the government to hand out free contraceptives. It’s another when the government does so by setting up shop in the Little Sisters’ health plan.

If it finds a solution addressing each side’s concerns, it may because the court realizes there is more flexibility on the government’s side than it has let on. The government’s case for why it must hijack the Little Sisters’ plan is threadbare.

Before the government can infringe the right to religious exercise (or free speech, for that matter), it must pass the most demanding test in constitutional law. It must prove that enforcing the challenged law against the Little Sisters serves a government interest of the highest order that cannot be accomplished through less restrictive means. These two aspects work in tandem: The narrower the government’s claimed interest, the easier it is for the government to bat away alternative suggestions for how it might accomplish that interest.

When applying this test, the court’s job is to keep the government honest by measuring the government’s claimed interest against the factual record. As professor Michael McConnell has noted, if the government can redefine its interest at will, it can essentially avoid the least restrictive means analysis by baking the means into the alleged compelling interest.

For years, the government has identified its interest as giving women free access to preventive care services. But the solicitor general has now switched gears and conflated the government’s interest with the government’s chosen means of delivering it. As a result, the government now claims it has a compelling interest in ensuring “seamless” access through a ministry’s own health plan.

To bolster this newly fashioned interest, the solicitor general repeatedly told the Supreme Court that it was Congress that insisted on seamlessness. Mr. Verrilli claimed that asking women to sign up for free contraceptive coverage would create “precisely the problem Congress was trying to overcome.” He also claimed that “Congress made a judgment” that simply enrolling in a free contraceptive plan would “impose a very significant obstacle resulting in a significantly less use of medically-necessary services.”

But Congress did nothing of the sort. The text of the Women’s Health Amendment doesn’t say this. And the senators who spoke in the amendment’s favor agreed that it was focused on one problem: cost. Co-sponsoring Sen. Barbara Boxer, A California Democrat, predicted the amendment would save the lives of “countless” women “who would otherwise forgo preventive health care because of high copays and expensive deductibles.” Sen. Harry Reid, a Nevada Democrat, similarly stated that the “only reason women are putting off going to the doctor is because, in our broken health care system, it simply costs too much to stay healthy.”

The Institute of Medicine, the group that actually developed the contraceptive requirement, was also focused on cost, not “seamlessness.” Its final report cites several studies that explore the relationship between cost and women’s use of preventive care services, but it nowhere even suggests what the government is now proposing was its compelling interest. To the contrary, the report cites with approval the government’s efforts to expand contraceptive coverage through Medicaid and Title X, both of which require women to enroll.

The Little Sisters’ final brief points out that the government’s position “suffers from a healthy dose of revisionist history.” Thankfully, it seems the justices are skeptical of the government’s “seamless” argument as well. This makes sense since the government has simply not shown that offering government payments for contraceptives or providing access through government exchanges would frustrate the goals that Congress had in mind.

Given these facts, it should not be hard for the court, aided by the parties’ supplemental briefing, to identify a solution that honors both congressional intent and the Little Sisters’ conscience. Rejecting the government’s “seamlessness” argument would help settle this lengthy conflict and would avoid diluting the compelling interest test, a move that would make it easier for the government to override other civil liberties in the future.

Eric N. Kniffin is a religious liberty and religious institutions attorney in Colorado Springs. He is co-counsel in three cases challenging the Department of Health and Human Services mandate and co-authored two amicus briefs in support of the Little Sisters of the Poor.


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