Wednesday, August 6, 2014

What is coming after Hobby Lobby?

Cases similar to Hobby Lobby are being reconsidered by the lower courts.  Meanwhile, various courts of appeals are issuing conflicting precedents regarding the Affordable Care Act that will likely be reviewed by the U.S. Supreme Court.

Under the Religious Freedom Restoration Act, can a federal regulation require a religious non-profit such as the Little Sisters of the Poor to declare themselves against the contraceptive mandate so that their insurance company, by fiat of the federal government, must provide contraceptives at no cost to the employees?  Wheaton College and the Catholic University of America as religious non-profits are likewise fighting the contraceptive mandate and received a temporary reprieve from it.  Can such religious institutions whose long-held statements of faith oppose the use of abortifacients be forced to include them in their health insurance plans?


What if a religious non-profit is self-insured?  The Eternal Word Television Network here in Birmingham is self-insured (as is the University of Notre Dame).  Health insurance premiums for employees are paid into EWTN which contracts with a benefits administrator to process the claims.  Thus, EWTN underwrites the risks of insuring the employees, not a health-insurance company.  Under current regulations of the Department of Health and Human Services, if EWTN declares to the Secretary of HHS that it is a pro-life organization at its very religious core, EWTN does not have a health insurance company to take on the expense of contraceptives because EWTN insures itself.  Therefore, does HHS's "accommodation" impose a substantial burden on EWTN as a religious non-profit without being the "least restrictive" means of obtaining the public policy to provide contraceptives to everyone?

Can the federal government subsidize health insurance in states that refused to set up their own healthcare exchanges under the Act?  The Court of Appeals for the D.C. Circuit says no, and if its recent holding is not overturned, then the Affordable Care Act cannot be used to subsidize health insurance in states that did not set up their own exchanges.  The Court of Appeals for the 4th Circuit (South Carolina, North Carolina, Virginia, West Virginia, and Maryland) said yes the same day, thereby creating what in the federal courts is called a "circuit split."  In this case, the circuit split will likely be resolved the U.S. Supreme Court.

If Justice Roberts is right that the Obamacare mandate is really a "tax", then is the entire law void if it did not actually pass the House of Representatives before the Senate?  In the case of Sissel v. HHS, the Court of Appeals for the D.C. Circuit refused to overturn the law on such a ground because the Affordable Care Act's mandate, though ruled a "tax" by the U.S. Supreme Court, was held not to have been enacted for the purpose of raising revenue; thus, the Constitution's "origination clause" requiring revenue bills to originate in the House was held not to apply.  

If courts can determine that something held to be a tax is not a tax if other judges decide it really was not enacted to produce revenue, then they might be stretching their discretion.  I cannot predict the final outcome, but the U.S. Supreme Court will review a case if four justices wish to do so, and I can foresee that Justices Roberts, Alito, Scalia, and Thomas would want to review this case.

UPDATE, 8/11/2014-  As of yet, HHS regulations limit the "accommodation" to the contraceptive mandate to churches and religious groups employing and serving their own people.  Religious non-profits such as EWTN and the University of Notre Dame, despite their charters and statements of faith, are supposed to be treated by HHS as for-profit companies.  No court has overruled this regulation yet, though the Hobby Lobby decision allows closely held for-profit companies exercising their owners' religious beliefs to be exempt from the contraceptive mandate.