What will Chief Justice Roberts do in Little Sisters of the Poor v. Pennsylvania?

Justice Kagan offers one possible middle ground: "Cover only those who have objections to the existing accommodation."

|

Today the Supreme Court heard oral arguments in Little Sisters of the Poor v. Pennsylvania. It felt like déjà vu. Three year ago, I was in the Court for arguments in Zubik v. Burwell. (The Little Sisters had a companion case.) The short-handed Court punted the case, hoping that the political process could work the case out. (I wrote about that decision here.) Three years later, the political process still has not worked the case out. Chief Roberts may be eyeing another middle ground. And it is a familiar option.

The Accommodation and the Exemption

Let's start with some terminology. There are two relevant carveouts from the contraceptive mandate: the accommodation and the exemption. Under the accommodation, employers do not have to pay for contraceptive coverage. Instead, they can opt-out of paying by signing a form. Then, in most cases, the insurer would pay for the coverage. Female employees would still gain access to contraception. Under the exemption, employers could opt out altogether. Female employees would not gain access to contraception. The Obama administration gave the exemption to houses of worship, but the accommodation to religious non-profits.

In Hobby Lobby, the Court found that the mandate violated RFRA. The Court found that that the "accommodation," which had originally been give to religious non-profits, may also work for the for-profits.

As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections….We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS's stated interests equally well.

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.

As far as I am aware, for-profits like Hobby Lobby are content with the accommodation. (SG Francisco hinted at this point.) However, religious non-profits like the Little Sisters seek the full exemption.

Resolve Those Differences

At several junctures, the Chief expressed frustration that the parties could not "resolve" their "differences." Roberts asked Paul Clement:

CHIEF JUSTICE ROBERTS: Well, the problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences?

Justice Breyer sounded a similar tone of frustration.

I really repeat, if there's anything you want to add, the Chief Justice's question. I don't understand why this can't be worked out.

RFRA Theory Sweeps Too Broadly

At the outset of the case, Chief Justice suggested to SG Francisco that the government's RFRA theory would "sweep too broadly."

JUSTICE ROBERTS: –before you get to that, I'd like to ask you a question on your RFRA point. I wonder why it doesn't sweep too broadly. It is designed to address the concerns about self-certification and what the Little Sisters call the hijacking of their plan.

But the RFRA exemption reaches far beyond that. In other words, not everybody who seeks the protection from coverage has those same objections. So I wonder if your reliance on RFRA is too broad.

In other words, the new rule went far beyond exempting the Little Sisters. It also exempted people who may not share their religious beliefs.

Justice Kagan returned to that theme during her time.

JUSTICE KAGAN: --the Chief Justice's first question, which was about whether this rule sweeps too broadly. And I understand your concern about giving agencies some leeway so that there's --they don't have to think through thousands of accommodations in their head and then find the narrowest one possible for every person. But that's not really the situation we're in with respect to this.

There was an existing accommodation in place, and some employers had objections to that accommodation, the Little Sisters and some others. And even assuming that those objections needed to be taken into account, the rule sweeps far more broadly than that and essentially scraps the existing accommodation even for employers who have no religious objection to it.

And sort of by definition, doesn't that mean that the rule has gone too far?

SG Francisco replied that the accommodation was not scrapped. It is still available for employers that request it. Kagan was skeptical.

JUSTICE KAGAN: --do you have any evidence that the current exemption is being taken --availed --that only employers of the Little Sister kind who have complicity objections are now taking advantage of the exemption? I would think that there would be a lot of employers who would say, you know, we don't have those complicity beliefs, but now that they're giving us an option, sure, we'll take it.

SG Francisco answered that would be irrational. Firms like Hobby Lobby would be happy to accept the accommodation.

GENERAL FRANCISCO: Your Honor, I respectfully think that that would be irrational, given that employers would then be depriving their employees of a valuable benefit that doesn't cost them anything, because it doesn't cost any money to add contraceptive coverage to an insurance plan. It's a cost-neutral coverage provision.

"Cover only those who have objections to the existing accommodation"

Then, Kagan offers an alternate version of the rule:

JUSTICE KAGAN: But why couldn't you just have just have written the rule to cover only those who have objections to the existing accommodation? In other words, those who have these complicity-based beliefs that the Little Sisters have?

Francisco replied that the government should have "flexibility in the face of potentially competing statutory obligations." The Chief cut him off mid-sentence.  Justice Gorsuch, who was up next, asked "to hear the rest of your answer." Francisco continued:

I think we at the very least have a strong basis for believing that the prior regime violated the Religious Freedom Restoration Act, and that gives us the discretion to adopt a traditional exemption, which, after all, is the type --is the way that the governments have traditionally accommodated religious beliefs.

And I think that's particularly clear here since, one, RFRA both applies to and supersedes the ACA, and, two, even if you don't think that the ACA authorizes exemptions, even though we think that they --it does, there's nothing in the ACA that prohibits exemptions.

Clement suggests the rule may be different for non-profits

Later in the argument, Justice Breyer asked a long question about the APA. Then he expressed frustration that the plaintiffs did not raise a substantive APA challenge:

JUSTICE BREYER: Now you have interests on both sides. The question is whether this is a reasonable effort to accommodate. And that, I think, is arbitrary, capricious, abuse of discretion, but that is the one thing that isn't argued before us in these briefs or in this appeal.

So what do I do?

Clement's addressed that point. In doing so, he hinted at Justice Kagan's middle ground.

CLEMENT: That is not the nature of the challenge. They haven't brought that kind of substantive APA challenge. So I think what you would do is you would reject the challenge that is before you, because I don't think any of the grounds that have been litigated before you are valid, and you could make clear in your opinion that if somebody down the road has an objection to the scope of the exemption, say they work for a for-profit company and with respect to that for-profit company, they're not getting their services and they think that's because the APA --because the --the rule here is too broad, that would be a separate APA challenge that I don't think rejecting the challenge here would foreclose. So I think that's the --the path forward.

Here Clement is talking about an employee of a for-profit company, like Hobby Lobby. Clement suggests that this employee could bring an as-applied APA challenge. Though the new rule may be reasonable for groups like the Sisters, it may not be reasonable for for-profits like Hobby Lobby. Clement represented Hobby Lobby, so he is in a unique position to draw this distinction.

Later, Justice Gorsuch asked Paul Clement about the APA. And once again, Clement distinguished the analysis between non-profits like the Sisters and for-profits like Hobby Lobby.

MR. CLEMENT: And there's an obligation on HRSA to take into account RFRA as well as its authority under the ACA. And so it seems to me that an exemption for religion --that of the kind that's in the final rule here, I think, is going to be insulated from an arbitrary and capricious challenge in a way that exempting, say, just large employers or employers incorporated in Delaware. I think all of those would be irrational and --and arbitrary and capricious under the --under the APA. But, here, the -the agency has complied with RFRA consistent with its authority under the ACA, which seems to give it a particularly strong case for its actions here to not have been arbitrary and capricious.

Once again, Clement is willing to treat for-profit employers differently. It would be irrational to exempt "large employers." But rational to exempt religious non-profits.

Do these concessions provide a middle ground?

Exempt all religious non-profits; accommodate the rest

I filed an amicus brief for the Cato Institute and the Jewish Coalition for Religious Liberty. We made arguments about the non-delegation doctrine, which are not relevant here. (I'll be happy for a cite by a Thomas or Gorsuch concurrence.) But we did raise one relevant point: the Obama administration was out of its league to give the exemption to houses of worship, but saddle religious non-profits with the accommodation. We wrote:

The only available remedy for those whose free exercise is substantially burdened by the enforcement of the statute is an exemption, not a half-hearted accommodation. See Blackman, Gridlock, supra, at 254–256 (contrasting the different ways in which the executive branch and Congress can accommodate RFRA violations). The expanded exemptions were a reasonable way to accomplish that goal

Our position focused on those "whose free exercise is substantially burdened." We thought the blanket exemptions were "reasonable," but not the only way to proceed.

I think Kagan, and perhaps Roberts, may be hinting at this middle ground. First, the government's RFRA theory is too broad. People are exempted who may not share the Sisters's steadfast religious beliefs. Second, Zubik held that the Obama administration's exemption/accommodation dichotomy was too stingy. Perhaps the middle ground is what Kagan suggested: "Cover only those who have objections to the existing accommodation." In other words, exempt all religious non-profits who raise these objections, and give the accommodation to the rest.

How would this opt-out work? The non-profits could be asked if the accommodation substantially burdens their free exercise. If the answer is yes, they would be exempted. I do not think groups like the Sisters would object to this burden. Indeed, they have told courts for nearly a decade they have religious objections to the mandate. The Sisters can attach an appendix to their opt-out form.

How should the Court proceed? A remand back to the agency would be counter-productive. The issue would be tied up in litigation for years. "This case, in litigation for [almost] a decade, has gone on long enough."

Could this outcome be accomplished without a remand? Yes. Indeed, there is a precedent close at hand. On January 24, 2014, the Court issued an order in Little Sisters of the Poor v. Sebelius. That case effectively modified the opt-out regime for the Sisters. It provided:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

I offered this description in Unraveled (p. 245):

Simply stated, if the Little Sisters notify the government in writing that they "have a religious objection to providing coverage for contraceptive service," which they obviously do, they are exempted from the contraceptive mandate altogether.

The Court could simply enter the same order from 2014, as part of the permanent rule. Or, as Justice Kagan said, "Cover only those who have objections to the existing accommodation." The Sisters would be exempt. And Hobby Lobby would be accommodated.

NEXT: Have the Little Sisters's Plan Been "Hijacked"?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Under what theory would the exemption not apply to 1) closely-held for-profit companies and non-profit companies that do not hold themselves out as religious whose owners have a religious objection?

  2. First off, I have little sympathy for a person that would work for a company that is as paternal as Hobby Lobby. The company is run by imbeciles that don’t understand basic biology. That said, the notion employers are doing some great thing by offering health insurance is absurd! The New Deal Democrats and UAW came up with our health insurance system in order to increase the power of unions! Employer provided health insurance is a quasi government program and employers should STFU and provide policies the government mandates they provide! If they don’t like it then lobby the government so you can stop providing health insurance and you can just pay more in wages. Guess what your female employees can do with those wages? USE THE MONEY YOU PAID THEM TO GET AN ABORTION!!!!

    1. “USE THE MONEY YOU PAID THEM TO GET AN ABORTION!!!!”
      Yes, or any other service related to their reproductive practices.

      1. Health insurance = wages. Any other conclusion is absurd because employers providing health insurance is a non sequiter. So the reason employers provide health insurance is because the UAW and New Deal Democrats saw how war time wage caps helped labor unions and so they codified it into the federal tax code. Other than that it is not logical for employers to provide health insurance any more than it is logical for them to provide auto insurance.

        1. I’m generally sympathetic to the argument that employers shouldn’t be required to provide health insurance. I’m not certain there isn’t an efficiency in them providing it, though. Suppose a large employer has access to a risk pool that means it can pay $X for per-employee quality coverage of Y, but if the employee purchased Y separately they would have to pay $X+$Z. Under those circumstances, it’s cheaper (by $Z) for the employer to provide the insurance than it is to just pay the employee $X+$Z to purchase their own insurance. That would be an efficient way for the employer to and the employee to maximize compensation without costing either more than an alternative counterfactual.

          1. But that’s just an argument for people getting their insurance through groups, NOT that those groups should be their employers.

            Indeed, those groups should NOT be their employers, because that means your insurance is disrupted if you change jobs. While if you were getting your insurance from, say, CostCo, (Which could just as easily provide a large risk pool.) you could keep the same insurance through job changes.

            The real reason insurance is linked to jobs is the tax situation: Insurance provided by your employer is pre-tax money, while if you buy it somewhere else it’s paid for out of income already taxed. That’s what needs to be fixed, equalizing the tax status of insurance no matter where obtained.

            1. “But that’s just an argument for people getting their insurance through groups, NOT that those groups should be their employers.”

              Assume the cost to Paul of joining the risk pool with healthcare Y (unrelated to their employer) is $X+$Z. The added $Z is because Paul is not in a healthy cohort, and so the risk pool isn’t eager to have him in, and charges a premium of $Z. Suppose Paul wants to work at Corporation that wants Paul to work there. Corporation already has a big risk pool. Adding Pauls will increase its costs in the risk pool, let’s say (in the aggregate) by $P. So the employer will have to spend $X+[Paul’s portion of $P] to get Paul healthcare Y. Where $Z is larger than [Paul’s portion of $P], it makes more financial sense for both Paul and Corporation for Paul to receive insurance through the employer. Because Corporation, due to its risk pool, can pay less for Y than Paul has to pay. The two can then split the difference in savings someway where they are both better off. That would be true regardless of the tax implications.

              However, I’m not aggressively against equalizing tax status of insurance no matter where obtained.

  3. I do not think groups like the Sisters would object to this burden.

    I’d go a step further and posit that even if a religious group objects, requiring a group to state “yes, the accommodation burdens our religious exercise” is not itself a burden. After all, what happens if there is an objection?

    Step 1: “We object to providing contraception coverage because it substantially burdens our religious exercise.”
    Step 2 (where the Sisters are now): “We object to filling out the accommodation form because our filling out the form will cause contraception coverage to be provided by another party, thereby making us complicit, which substantially burdens our religious exercise.”
    Step 3 (the hypothetical): “We object to saying whether the accommodation would substantially burden our religious exercise, because saying ‘yes’ will be treated by the government as the equivalent of affirmatively asking for the accommodation, and asking for the accommodation substantially burdens our religious exercise.”

    Unless “expecting you to answer whether you object” is treated as “not a substantial burden,” the mere act of trying to accommodate (or exempt, or whatever) religious exercise can run afoul of RFRA. That strikes me as an absurd reading of the statute, given that the whole purpose is to exempt religious exercise from generally applicable laws.

    1. At one point, I agreed with your reasoning and thought the objecting employers had built an unreasonable Catch-22.

      However as Marty Lederman pointed out, after Zubik it become clear employers objected to their employees “automatically receiv[ing] free contraceptive coverage solely by virtue of their enrollment in petitioners’ plans.” That is, notifying the government of their objection wasn’t per se the burden on religious exercise. It is what happened as a result of informing the government which was the burden.

      1. One of the things I continue to believe about these cases is that they are the result of a legal system that refuses to touch the third rail of litigating the sincerity of claimed religious beliefs.

        I don’t, honestly, believe that many of the religious plaintiffs in these cases believe half the stuff they claim to believe. For instance, I suspect the Little Sisters of the Poor, like most other social service charities, sometimes aids people in ways that free up a recipient’s funds to engage in behavior they believe to be sinful. I suspect they sometimes hire people who use the money they are paid to engage in sinful activities. I believe they sometimes engage in cooperative endeavors with other agencies and organizations whom they consider to be involved in sin.

        I think Scalia had it right in Smith. Exemptions from generally applicable laws are serious business. They are at odds with the very notions of equal protection and the rule of law- the idea that the law binds all of us, not only those of us who can’t find a way out of it. And they can easily undermine the effectiveness of the law, because people seek out the loopholes when all you have to do is file a false court affidavit to get the exemption.

        The solution to all of this would be to litigate sincerity. Make people really demonstrate with real evidence that this is the way they have always conducted themselves. If we did that, it would become hard to get exemptions, and we could be very liberal about granting them once the showing gets made.

        Of course, since that will never happen, instead the Supreme Court has to hear these cases that seem to argue, over and over again, that Jesus was apparently inexorably opposed to subsidized reproductive health care.

        1. At the time of the Constitution religion was very important and so it was a preexisting power structure that was useful to prevent tyranny. So pursuant Montesquieu you need to divide power in order to prevent tyranny and religion was important and thus had power. If the Constitution was written today religion wouldn’t be included because it is no longer powerful. So a US Constitution drafted today would have an Establishment Clause that prevented a national football team from being created and the Free Exercise Clause would protect football fans cheering their teams on and not religious organizations praying together or whatever it is they do on Sunday mornings.

        2. For instance, I suspect the Little Sisters of the Poor, like most other social service charities, sometimes aids people in ways that free up a recipient’s funds to engage in behavior they believe to be sinful.

          Yes, Jesus taught to consider the ramifications of healing others, freeing up their money from balms and broken pottery shards to scrape sores and food begging and stuff. Rather than be lead by example, they might go and sin.

          1. Jesus didn’t teach that you shouldn’t sign a form so that your employees could get aid from the government either. Instead, he said to “render unto Caesar”….

            1. Always cute when religion haters quote Scripture.

              1. I’ve long said that the easiest way to get someone to turn against Christianity is for them to actually read the Bible.

        3. “One of the things I continue to believe about these cases is that they are the result of a legal system that refuses to touch the third rail of litigating the sincerity of claimed religious beliefs.”

          It’s a third rail for a good reason: Once you have the legal system evaluating the sincerity of claimed religious beliefs, you get people like Sebastian deciding that they’re ALL insincere. It gives too much scope to people hostile to religion to impose their views.

          My own perspective is that the very fact that religious accommodations are an issue is due to the fact the government is too heavy handed, issuing too many orders. Generally speaking, it shouldn’t be necessary for religion to seek exemptions and accommodations, because if a command is unimportant enough that it would ever make sense to do so, the command shouldn’t have been issued in the first place. Religion wouldn’t NEED to be privileged over secular motives, if we were free. Religion only needs it because we are oppressed.

          Render men free, and you don’t need to inquire into their sincerity or motives, because you’re only ordering them around on topics where sincerity and motives would be irrelevant in any case.

          But, of course, that’s my private perspective, the Constitution actually DOES specially privilege religion, even if the Court dislikes that fact, and fights against it.

          1. But even in a libertarian utopia the issue would still come up. You’ll find people who claim God told them to commit murder, or to rape children, or to burn synagogues and mosques to the ground. So even with far fewer laws, you still need a framework for those occasions when someone claims an exemption based on conscience.

            1. Yes, you’ll find such people, and you’ll tell them to stick their claims where the sun doesn’t shine. My point is exactly that if a demand is unimportant enough to let religion have an exception, you shouldn’t be making it of ANYBODY. Religious or secular.

              Obviously laws against murder ARE important enough that the Reformed Church of Kali doesn’t get an exemption. The contraceptive mandate, by contrast, is unimportant enough that everybody should get an exemption, regardless of their motive for wanting it.

              1. That may be generally true but I can think of exceptions on both sides of that fence — issues that are truly important but for which there is also a compelling reason to allow people to practice their religion, and issues that are not that important but still important enough to make everyone comply.

                I would allow parents to raise their children to be racists, even though racism is a devastating social problem, because the First Amendment is pretty important too. Conversely, I would not allow a religious exemption from a public school requirement that certain books which some might find offensive be included in the curriculum, even though there are lots of other books that could be used instead. If it’s that important to you that your child not read Catcher in the Rye, enroll them somewhere else. Your mileage may vary.

                So there will still need to be a framework for deciding on religious exemptions.

        4. I don’t, honestly, believe that many of the religious plaintiffs in these cases believe half the stuff they claim to believe. For instance, I suspect the Little Sisters of the Poor, like most other social service charities, sometimes aids people in ways that free up a recipient’s funds to engage in behavior they believe to be sinful. I suspect they sometimes hire people who use the money they are paid to engage in sinful activities. I believe they sometimes engage in cooperative endeavors with other agencies and organizations whom they consider to be involved in sin.

          The fact that you do not see a difference between giving someone unrestricted money that they then independently choose to spend on something sinful, and giving someone something for the specific purpose of being used on something sinful, does not mean that other people are insincere when they make that distinction. It just means that you are narrow-minded.

          Just like Thomas was willing to make steel that had a lot of possible uses, but was not willing to make steel that was specifically designed for tank turrets.

  4. The simplest resolution is the one hinted at in another of your posts here, which notes that the ACA doesn’t actually mention contraceptives. The contraceptive mandate isn’t a product of the law, it’s a regulation issued purportedly to implement the law.

    That being the case, why can’t the Trump administration relax or even eliminate the contraceptive mandate? RBG seems to be treating the mandate as though it were statutory, saying that “Congress” thought it essential. But Congress didn’t enact anything about contraceptives in the ACA.

    1. I agree that JusticE Ginsberg seemed to be treating a whole series of features, including a “seamless” requirement, as if they were textual statutory mandates.

      1. And even if “seamless” were mentioned, how can that trod on a fundamental, enumerated right when less intrusive options to accomplish the goal not only are possible, but exist already?

        1. Because it’s the super-right, with powers and abilities far beyond those of mere enumerated rights.

  5. I’m sure Juan Roberts will find a way to ensure he keeps getting invites to the Georgetown cocktail parties he so craves.

    1. Likely you’re right.

    2. There’s a far more charitable explanation. I’m old and forgetful so I may have already related this story here; if so, I apologize.

      I once served a single term on a city council. The first thing I learned once I took office is that it’s easy, as a candidate, to throw verbal rocks at the incumbent, but once one is in office and actually has to govern, a lot of the things that looked really stupid to an outsider suddenly make sense. “Oh, so that’s the reason it’s done that way; that never occurred to me.”

      A lot of conservatism and libertarianism is beautiful theory that simply does not work well in the real world. I can see someone arriving at the Supreme Court will all kinds of ideas about what the law should be, only to find, once one actually starts deciding cases, that the consequences of that ideology is that real people are going to suffer real harm. Or there will be some social upheaval that didn’t occur to one earlier, when one had the luxury of spouting theory without actually thinking through how it would play out in practice.

      I’m going to make a prediction, and you heard it here first: Even if Trump gets another Supreme Court appointment, Roe v. Wade is going to end up being left mostly intact for that reason. Roberts may be an ideologue but he’s not crazy. Whether or not Roe was correctly decided the first time, at this point the damage from undoing it would just be too great.

      1. “A lot of conservatism and libertarianism is beautiful theory that simply does not work well in the real world. ”

        Yes, yes, your beliefs are wrong, mine are correct.

        Tedious.

        1. No, rather that as with any other hypothesis, the worthiness of any political belief — liberal or conservative — is how well it meets the needs of real people in the real world.

  6. Simply stated, if the Little Sisters notify the government in writing that they “have a religious objection to providing coverage for contraceptive service,” which they obviously do, they are exempted from the contraceptive mandate altogether.

    I had understood that the Little Sisters’ position was that merely notifying the government of their objection to providing coverage made them complicit, as the government needed that notification in order to inform the insurance carrier to pay for the coverage themselves.

    1. The Little Sisters are self insured. They use a third party administrator (TPA) who also has a religious objection, and under ERISA, the TPA is exempt from having to provide the coverage.

      The Little Sisters should never have been part of any litigation.

      1. Every woman working for them should know that they have to use Kotex Classic pads instead of tampons.

  7. The Obama administration gave the exemption to houses of worship, but the accommodation to religious non-profits.

    Oh! What a tangled web we weave, when first we practice to deceive.

    But that’s all government bureaucrats know how to do, and good thing too, because it provides a lifetime of employment and mirth.

  8. There seems to be a serious standing issue here.

    1. Little Sisters of the Poor are protected by injunctions which aren’t being challenged, so they’ll remain exempt regardless of the outcome. Since they won’t be affected by a decision, how do they have standing to be a party to the case?

    2. Pennsylvania’s best argument seems to be that the revised rules give exemptions to for-profit corporations, potentially publicly traded ones. But none are parties to the case. This is not a first amendment case. How do they have standing to raise an overbreadth argument?

    3. And why does Pennsylvania have standing in the absence of any identified party actually affected? Pennsylvania is arguably asking for an advisory opinion about conditions that might happen, without proof they are happening.

    1. Pennsylvania is claiming that it, itself, is affected. It is not raising the claims of others.

  9. What will Chief Justice Roberts do in Little Sisters of the Poor v. Pennsylvania?

    Something stupid?

    1. That’s his brand.

  10. So WHY are we not looking at the real legal issue here: non-delegation?

    The ACA says nothing about contraception coverage – what Congress actually says is ‘essential health services’.

    To claim that ‘Congress’ required the coverage is wrong. The Obama Administration required the coverage based on their interpretation of ‘essential health services’.

    Which brings us (once again) to the issue of administrative agencies creating law that some-how becomes untouchable by the next administration….

    Which is complete crap: either it’s constitutional for the next administration to override the executive findings of it’s predecessor…

    Or (the better option) it’s unconstitutional for Congress to leave something as broad as ‘essential health services’ up to administrative agencies to determine, and the entire EHS mandate is unconstitutional under non-delegation.

    1. The alternative is that “essential health services” includes contraception coverage as originally enacted. Courts interpret “broad” statutes all the time. Are there many people (besides religious objectors) who think contraception coverage isn’t essential? I’d be interested to hear your definition of “essential” that draws that line, without gutting the purpose of the ACA.

      1. How the heck can contraceptive pills be an “essential” health service when most women are perfectly capable of getting by without any form of contraception at all, and other forms of contraception are available OTC? Is it possible for something to be “essential” when it’s optional to use it, and substitutes are dirt cheap and readily available?

        1. If your definition of “essential” is “it is essential unless a person is incapable of getting by without any form of the service” then you’ve walked right into “gutting the purpose of the ACA”. The overwhelming majority of medical services are not “essential” under that definition. Most health insurers cover contraception, for pretty obvious reasons.

  11. This is all irrelevant.

    The ACA is unconstitutional but for the taxing provision.

    Congress repealed the taxing provision.

    The ACA is therefore unconstitutional.

    There is no severability clause in the statute, Congress intended the statute to rise and fall with the mandate.

    Any regulations put forward to enforce this unconstitutional law should therefore fail.

    1. No. The individual mandate is unconstitutional but for the taxing provision. Not “the ACA.”

      Congress intended the statute to rise and fall with the mandate.

      [Citation needed.]

  12. Roberts failed in his job in 2012 so 8 years later we still have governments harassing nuns.

Please to post comments