A Mixed Bag: Michigan Federal Judge Grants Injunctive Relief in an HHS Mandate ChallengeWilliam J. Haun • November 1, 2012 • 4:50 pm
Last evening, Judge Richard Cleland of the U.S. District Court for the Eastern District of Michigan granted an injunction against the HHS contraceptive mandate in Legatus v. Sebelius. The order is here. The case is a challenge to the HHS mandate that employers provide health insurance coverage of contraceptives and abortion-inducing drugs, and is brought by secular individual as well as companies seeking a religious-based exemption from the mandate on the grounds that providing such coverage would violate their Roman Catholic faith. Here is a brief outline of the order’s key findings and some commentary:
- In deciding whether the first plaintiff, Weingartz Supply Company, has satisfied the standing requirements, Judge Cleland declines to address whether corporations have religious free exercise rights. However, the judge does extend free exercise protection further than other courts have in similar cases. While other decisions cited by the judge looked to the corporation as a way to fulfill the owner’s religious goals in evaluating free exercise protection, here it’s sufficient that Daniel Weingartz (the corporation’s president) has a personal free exercise right and is defended through his company (pgs. 8-9).
- Regarding the standing of the second plaintiff, Legatus, the judge furthers the view of other courts in affording the government a good faith presumption that HHS and the president will keep their promise to “accommodate” other religious objectors (the only evidence of which at this time is a press conference by President Obama) and accordingly finds that Legatus’ injury is too hypothetical to qualify for relief—i.e., it cannot show a substantial burden on its exercise of religion. (pg. 11).
- As a further clarification to what constitutes a substantial burden, the judge rightly notes that “courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims” (pg. 13). Accepting that standard, finds that a substantial burden on the plaintiffs’ religious free exercise here.
- When discussing whether the government possesses a compelling interest sufficient to substantially burden religious exercise, Judge Cleland notes an important point lost in the general public debate: it’s not enough that the government has a compelling interest in broadening contraceptive access; it needs to have a compelling interest in forcing the individual plaintiff to violate his conscience to achieve that objective. As his decision states: The court must look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize the asserted harm of granting specific exemptions to particular religious claimants.” (pg. 19). In the course of that argument, the government tips its hand at the likely scope of whatever “accommodation” the Obama administration would likely reach:
The Government argues that providing a religious exemption to a secular, for-profit company would open the door for owners of other secular businesses to request religious exemptions to federal laws under RFRA, thereby essentially imposing the owners’ religious beliefs on their employees who may not share their owners’ convictions. (pg. 20).
If that turns out to be the Obama administration’s “redline” when it comes to crafting an accommodation, it is difficult to see how the administration’s “accommodation” will safeguard the religious exercise rights of individual Americans (as opposed to religious entities), as well as individual American businesses. As I’ve noted here, there is appellate-court case law going back to at least 1898 suggesting that entities unaffiliated with religious organizations have Free Exercise rights.
- Judge Cleland makes an interesting point at page 21 when discussing the Government’s compelling interest. He says that it would be wise for the plaintiffs to show how their employees can get access to the “full-range of FDA-approved contraceptives” without their company’s participating in the cost-sharing. The judge compares this inquiry to how the Supreme Court in Wisconsin v. Yoder downplayed the state’s compelling interest in compulsory education because the Amish had vocational training. This raises some interesting issues.Even if the government has a compelling interest in the marginal expansion of already broad contraceptive access (though as the Supreme Court said in Brown v. Entertainment Merchants Association, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced”), the analogy to Yoder here does not seem that strong. The Court in Yoder cited the Amish use of vocational schools as a way to refute the government’s argument that the Amish families were fostering ignorance by refusing to send their children to compulsory school. A vocational school, by its very purpose, is not going to expose children to the “full range” of government-mandated curricula from a public school. Thus the analogy made by Judge Cleland here when he suggests the plaintiffs explain how its employees can get access to the “full range of FDA-approved contraceptives” seems unnecessary. If one works for a company where the ownership has a religious-based exemption to something, the fact that such an exemption would not provide the same type of benefits that a non-objecting entity possesses is to be expected, not criticized. This is why the Religious Freedom Restoration Act analysis has a “least restrictive means” component, which I discuss below. It is not the challengers’ burden to show parity with the opportunities afforded by non-objecting entities. Rather it’s the government’s burden to show that there isn’t a lesser restrictive way to achieve its objective without putting the objector in a religiously compromising position.
- In his discussion of “least restrictive means,” Judge Cleland makes many thoughtful points. He notes that the cost to the plaintiffs in violating their consciences is “provably substantial,” and goes on at length to dismiss a formulation of the “least restrictive means” test that would functionally exempt the Government from having to show it (pg. 22-23). He then explains why he thinks that one of the Plaintiffs’ suggested lesser-restrictive means, the government dispensing free birth control, is logistically impractical. Yet the judge then concedes that neither the government nor the plaintiffs will likely meet their burden on this point at trial (pg. 25).Missing from this discussion is any reference to the Newland decision this summer in the U.S. District Court for the District of Colorado, which granted injunctive relief to HHS mandate challengers. There, the government made a comparable argument regarding the logistical hassle of its dispensing free contraceptives, but the argument was rightly dismissed by the District Court on several grounds. One was that the government already provides free birth control to women, and the existence of such programs cuts against the notion that it would be unfeasible for the government to expand what it already does. As the plaintiffs there noted, the administrative concern cited by the government re-casts the government’s compelling interest: no longer is it about spreading contraceptive access through cost-sharing (as such an interest is certainly met if the government directly provides the contraceptives), it’s now about the government’s administrative convenience. The court’s other ground for dismissing the logistical hassle argument was that there were no facts suggesting that any new administrative inconveniences imposed on the government from dispensing free contraceptives would undermine its interest in expanding contraceptive access. It’s curious that any reference to Newland is missing from Judge Cleland’s swift dismissal of this lesser restrictive alternative.
- Ultimately, the judge balanced the harms of granting or denying injunctive relief in favor of the plaintiffs based on their making some showing, though not a strong showing, of success on the merits. The Judge stressed that not granting the injunction would be far more damaging to the suit going forward since denying the injunction would functionally operate as a loss on the merits for the Plaintiffs (pg. 28). Though the Judge Cleland’s decision is lacking in some respects, the tenor of the order is sufficiently evenhanded that the plaintiffs could prevail on the merits.