Read our coverage on challenges to the Affordable Care Act’s birth control benefit here.

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Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode, we talk about the Little Sisters of the Poor and their crusade against the birth control benefit.

JMP: It goes without saying, Imani, that the legal attacks against the birth control benefit are I think really very thinly veiled political attacks against health-care reform, as we’ve talked about a bunch on this show. But I really think that’s why it’s so important to talk through the Little Sisters case and one of the things that I wanted to start by talking about is just the plaintiffs: Little Sisters. These nuns who are taking on the big bad Obama administration, huh?

IG: Yeah, I mean they make great plaintiffs, right? They make really, really good plaintiffs, these nuns who are very religious, very pious and the big bad Obama administration is forcing them to cover contraception. Forcing nuns who don’t even have sex to cover contraception and how horrible it is that the Obama administration would do such a thing to these poor, little sweet nuns. And it’s just ridiculous as Brigitte will talk about. There’s nothing that could ever happen that could ever force the Little Sisters of the Poor to provide contraception coverage in their health insurance plans.

JMP: Right. So one of the reasons we decided to spotlight the Little Sisters case is because its one of the cases that still lives after this summers’ fights in Hobby Lobby and Wheaton College and very well could find its way up before the Roberts Court again. But also because it really is this great snapshot into just how political these attacks are. So like you said, the sweet little innocent nuns, it’s almost as if sounds like the Obama administration is forcing them to take birth control!

So they have this church plan that says they never ever have to provide birth control coverage under any circumstances. So really we have a pretty perfectly chosen plaintiff, a lot like the buffer zone cases to put forward this fight. And I don’t think that political posturing really gets enough light.

IG: Right and it’s something that just occurred to, but why hasn’t any court said, “Umm excuse me ladies but your case is moot because you are never going to have to provide contraceptive coverage?” I mean they are sort of a stand in for a lot of other religiously organizations challenging the birth control benefit. But these particular plaintiffs, why do they even have a case?

JMP: It’s an excellent question and I think one that hopefully the courts get to sooner rather than later. In the D.C. Circuit Court of Appeals, Priests for Life has sort of taken on this issue and is doing a little presto-chango with the courts that says, “well even if that’s the case and even if the law says that these church plans don’t have to comply with the birth control benefit anyhow, you should still give us these exemptions because it’s just the principle of it,” and I think there tilts the hand that this is not really about contraception. I mean it is. But it’s not. It’s about basically anybody who wants to be treated as a church, as far as the religious right is concerned, to have that ability to avoid certain parts of complying with laws that they don’t like.

IG: All of these cases have been so politicized, and I think Little Sisters of the Poor is the perfect example of the politicization of the birth control benefit. I never really thought two years ago when we started all of this we would still be here two years later and that we would be staring down the barrel of another two, three, four years of contraception mandate cases. Because the Obama administration created this accommodation, and then the Supreme Court said in the Wheaton College interim order “well maybe the accommodation is also a violation of the Religious Freedom Restoration Act.” So the Obama administration, basically being the pushovers that they are at this point. I mean I’m sorry to say it. I love me some President Obama but he needs to stop mucking around with the accommodation to the birth control benefit. Because what they’ve done is accommodated the accommodation, which therefore essentially renders the original accommodation a violation of the law because we have this whole ‘least restrictive means’ test where the government has to use the least restrictive means to advance its interest. Well by revising the accommodation before the Supreme Court has even had a chance to rule on it, the Obama administration has basically admitted that that accommodation is not the least restrictive means.

JMP: One of the things that I think is really great about the explanation that you give there is that not only has it become politicized from the right, but by bending over backwards it has inadvertently become politicized by the Obama administration too, and it’s ridiculous because what we are talking about is health care, right? Birth control is health care. Contraception is health care. I don’t know how many times we have to say that and people still are not getting it.

You know one of the things that occurred to me to is that in the context of these cases being largely political attacks against health-care reform, they really depend on making sure that people stay very confused not only about the birth control benefit, but about who is challenging them, what the Obama administration is doing, and thankfully you have been able to cut through some of that confusion in particularly brilliant style with your explanation via GIFs.

IG: I actually had a lot of fun with that particular post. The both of us, we’ve been writing about this stuff for a couple of years now and every so often I find myself confused as to what we’re talking about, which particular religious organizations, whether they are nonprofit, for-profit, churches, universities. What’s the accommodation? What’s the accommodation to the accommodation? How does Hobby Lobby fit in? How does Wheaton College? I mean it is very confusing stuff. So I sat down and I decided I was going to try and break it down into really simple lay persons terms and use GIFs.

So if people want to check that post out google ‘GIFs-Planation of the Birth Control Benefit’ or go to RHRealityCheck.org\ABLC it is one of the few post that I’ve published so far on Angry Black Lady Chronicles, which has been launched at Rewire and is very exciting.

JMP: Hooray!

IG: But give it a read. I’ve heard from people, even from people in our field that the explanation, that GIFs-planation was actually very helpful to pare down exactly what is going on. So hopefully people will get something out of it and then will be a little more cognizant of what their rights are. The religious right is essentially using lawsuits, using religion as a weapon to basically strip women of rights to which they are entitled.

JMP: I am looking into a way that we can submit theGIFs-planation to the Roberts Court as an amicus brief in the next round of contraception benefit litigation because I think that there are five conservatives on the bench who would really benefit from the clear and concise explanation via hysterical animation that is provided in that post.

IG: I think that would be hilarious. I would love for myGIFs-planation to be cited in a Supreme Court opinion. I mean Irin Carmon was lucky enough to have one of her articles, I think on Eden Foods, cited in several opinions. So hey, let’s get aGIFs-planation cited in a court opinion that would be lovely.

JMP: So, the Supreme Court term starts in October and it feels like we’re picking up right where we left off at the end of June, and that’s talking about lawsuits challenging the birth control benefit in the Affordable Care Act. Only instead of Hobby Lobby and Eden Foods and Conestoga Wood Specialties for-profit challenges to the requirement, we have lawsuits from groups like Little Sisters of the Poor, Priests for Life, Wheaton College and the University of Notre Dame who claim the process developed by the Obama administration that allows these institutions to essentially become exempt from the rule and thus not cover contraception in their employee health plans is itself too burdensome. We are going to walk through those claims and where they stand now since it’s looking pretty likely at least one of those cases I just mentioned will end up before the Roberts Court.

Thankfully we have Brigitte Amiri, who is going to talk with us about the Little Sisters of the Poor and the contraception litigation that lives post-Hobby Lobby.

Welcome, Brigitte, and thank you so much for joining us.

BA: Thank you for having me.

JMP: So we recently learned that the religious nonprofits challenging the birth control benefit have rejected once again the Obama administration’s latest efforts to accommodate their religious concerns. Let’s walk through for the audience first of all, what’s in the Obama administration’s last revision?

BA: Sure. So for religiously affiliated nonprofit organizations under the contraception rule under the Affordable Care Act they have always been able to take advantage of this accommodation which is a form they send to their insurance company that says “I have an objection to providing contraception coverage” and end of story. And so that piece of paper goes to the insurance company. The insurance company is then responsible for communicating with the employers and employees and providing the benefit directly. So the employer pays nothing. They don’t communicate with the employees. All they do is fill out a form.

A number of nonprofit organizations sued over this requirement and said that just filling out that form is a violation of my rights under RFRA [the Religious Freedom Restoration Act]. But the Obama administration has gone a bit further in trying to accommodate the religious beliefs of these religiously affiliated nonprofits and said that instead of filling out the form, what you can do is send us the government a letter and we will communicate with your insurance company to tell them that they are not responsible for communicating with the employees. So it is an augmentation to the original accommodation.

JMP:  And these groups object to the augmentation now how?

BA: The groups are saying that there is basically no change and it doesn’t change their objection. They objected to filling out the form and sending it to their insurance company, they similarly object to sending a piece of paper or some kind of letter or however they want to communicate that they have an objection, to the government. They say there is really no difference in the process in terms of substantially burdening their religious beliefs.

JMP: The audience is pretty familiar at this point with the Hobby Lobby decision at the end of the term, and the Roberts Court and the drama closing out its term with that decision, but right after the court issued this interim order in the Wheaton College case that said effectively, for the moment, Wheaton College, you can avoid complying with this requirement. With the court’s decision in Hobby Lobby it seemed pretty clear, or at least the opinion seemed pretty clear that the one of the reasons groups like Hobby Lobby could avoid the contraception requirement was because this accommodation existed. And now the accommodation has been called into question. Is it really under threat in your opinion, or is this really much ado about nothing from the nonprofits perspective?

BA: Well, we think these lawsuits filed by the nonprofits have always been much ado about nothing. How possibly could filling out a form saying you have a religious objection ever substantially burden your religious beliefs? We have always thought that there has been nothing to these lawsuits. But particularly in light of the Hobby Lobby decision what is important is that Justice Kennedy provided the fifth vote for the majority decision, and very specifically he says that the reason there is an alternative mechanism for the government to further its goal of ensuring women have coverage, which is part of the test under the Religious Freedom Restoration Act, is whether there is another way for the government to achieve its goals. Justice Kennedy says there is another way to do this and it is the accommodation. And so hopefully that spells out the fact that the accommodation itself is integral to this entire program and that it is not at risk.

JMP: Let’s talk about Little Sisters and their “church plan” for a minute, because I think this is one of those details that is really important and gets lost in the shuffle and easily confused. So without getting into the boggy details of ERISA, another federal law that governs employee health plans, just generally what is a church plan, and how is it coming into play in these challenges?

BA: Right, so a church plan is a religiously affiliated funded plan. The Christian Brothers Trust, for example, runs the health plan for the Little Sisters of the Poor. They are considered a church plan under the federal benefits law, ERISA. And church plans are not subject to the contraception rule, so there is no way in which a church plan would ever have to comply with the contraception rule. That is why the Little Sisters of the Poor claim is even more weak than any of the other religiously affiliated nonprofits, because nobody is ever going to get contraception coverage if they work for Little Sisters of the Poor because the insurance company doesn’t have to comply with the contraception rule, because of this church plan issue.

JMP: It strikes me as a little bit cynical then to have the face of the nonprofit challenges be an organization called the Little Sisters of the Poor, you know those nuns, who would never be under any risk of actually engaging in behavior that violates their religious beliefs because their employees are never getting contraception anyway.

BA: That’s exactly right. So their cases should never be going forward in the court. They have suffered no harm, they have suffered no injury.

It’s pretty shocking in their brief that they talk about all the harm that will come to them if they have to comply with this law when the fact is this is a church plan and nobody is ever getting coverage. So, it’s pretty shocking and those cases should just be completely dismissed.

JMP: One of the arguments I’ve seen bubble up in the briefing and one of the arguments I think is really interesting, and as lawyers we like to make analogies all the time, is that we have precedent and this long legal history for granting exemptions from the law based on religious objections. And one of the examples that comes to mind are conscientious objectors—draft objectors. But I think that its really important to talk about how the claims by the religious nonprofits in these cases are NOT like draft objector claims since we do have this long history and from where I’m standing at least is it seems like one of the goals of the religious nonprofit challenges broadly is to really blow open this process for making religious objections.

BA: I think that is absolutely right, and obviously at the ACLU we are completely committed to someone’s opposition to the draft, for example, based on their religious opposition to war. And I do think you are absolutely right that it is important to distinguish this case from that situation, and I think Judge Posner who wrote the decision in the Notre Dame case for the Seventh Circuit explains this brilliantly.

He says basically that what the religiously affiliated nonprofits in these cases is trying to do is not just say I don’t want to participate in the draft because of my religious beliefs. They are basically saying I won’t even tell the draft that I have a religious objection to participating in the war because by doing so you will have to draft somebody else to fight in the war.

Another analogy that was used by the Sixth Circuit that also found that there are no religious beliefs that are substantially burdened here is when a judge has a religious objection to sitting on a death penalty case. That judge has to fill out a piece of paper basically that says I would like to recuse myself and allow another judge to take over. And what the analogy is there is that the religiously affiliated nonprofits are basically saying is that judge should be able to say “I don’t even have to fill out that piece of paper because what it will mean is another judge will sit and hear the capital punishment case.”

I think that those are really great analogies to show how far the religiously affiliated nonprofits in these cases are trying to go. They don’t have to cover contraception. All they have to do consistent with their religious beliefs is fill out a form that says they have an objection to doing so, and then their insurance company takes care of everything else.

JMP: What about the argument that they are starting to make that well, this is also forcing us to keep a contractual relationship with an organization, the insurance company, who will provide contraception and so therefore we are still facilitating sin. This sort of forced-coerced contract theory. What do you think about that?

BA: It just feels so attenuated. They contract with a major corporation in many instances. So many of these insurance companies are very big companies like Blue Cross Blue Shield and things like that. They are contracting with this very large organization, but none of their dollars, none of their money is going to pay for that contract. So it’s completely attenuated in the first place. Even if it were, I mean the whole purpose of insurance is that all of this money gets poled together and then paid out to settle a whole host of claims. So their arguments are just so many steps removed from doing anything that actually substantially burdens their religious beliefs.

JMP: One of the solutions I saw floated by the religious nonprofits is to just let the Obama administration provide the contraception coverage to those employees directly. The cynic in me doesn’t believe that is really a solution the challengers are really interested in. How would that work even? Do you have any idea?

BA: Right, well I think the other really interesting thing is for all these religiously affiliated nonprofits that are saying that the Obama administration should cover the cost of contraception, or that Title X, which is a federally funded program that provides contraception to low-income individuals could be another solution, they should put their money where their mouth is and they should be lobbying Congress to increase the budget for Title X, for example. But putting that aside, it’s not a workable solution. Women should have seamless coverage in their health care. They should not be forced, like second class citizens, to get their health care from some other entity because their employer has a religious objection to not even providing coverage in these circumstances, but to just filling out a form. We want women to have seamless coverage.

JMP: One of the things that I wanted to ask you before we wrap up is, with the Little Sisters of the Poor case pending in the Tenth Circuit and the Priests for Life case pending in the D.C. Circuit Court of Appeals, what do you think are the chances of the Roberts Court hearing a nonprofit case this term?

BA: There is a chance. So actually the Notre Dame case was actually one of the first cases decided at the court of appeals level by the Seventh Circuit and Notre Dame has I believe until early October to decide to file a petition for certioria to the U.S. Supreme Court to ask the Supreme Court to review that case. So depending upon on whether Notre Dame decides to do, that or Michigan Catholic Conference—which is a decision out of the Sixth Circuit relatively recently the entire Sixth Circuit decided not to rehear that case and to let the decision stand, saying that there was no RFRA violation there—could also be one of the first ones to get to the Supreme Court. There’s a couple in the pipelines depending on what the plaintiffs decide to do.

JMP: Brigitte, as always you can just walk us through this in a way that not many people can. Thank you so much for your time and your help explaining what on earth is going on after the Hobby Lobby decision with all these nonprofits. I’m sure we’ll be talking to you again because these cases are not going anywhere anytime soon.

BA: True, even though they should.

JMP: Agreed! Thank you so much for your time.

BA: Thank you.

JMP: Thank you for listening to RJ Court Watch and be sure to catch all of our reporting and analysis on the contraception benefit at www.RHRealityCheck.org.