Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?

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9 Responses

  1. Kevin C. Walsh says:

    This is interesting, but it may never get to the First Amendment. The RFRA claim is very strong. I, for one, can’t understand why everyone moves right to Smith and the First Amendment when the RFRA provides for strict scrutiny. The RFRA is presumably one reason for the scramble to at least give the appearance of a change in policy in an attempt to show that the mandate does not impose a burden that triggers the RFRA’s protections. The only Supreme Court case applying the RFRA against the federal government went rather poorly for the government. And the Administration’s rebuke this Term in Hosanna-Tabor was notable (not a RFRA case, of course, but indicative of the Administration’s failure to attend appropriately to religious liberty concerns). I don’t think you need “legal realist” variables to see how the Administration could find itself on the wrong end of some district court judgments in the not-too-distant future; the “legalist” considerations alone are enough.

  2. Joe says:

    It is fairly reasonable to think that one or more of the courts below will find some degree of merit to the claim here though I think it weak (as shown by the CC argument, that and some change, will get me a cup of coffee).

    The EEOC, post-RFRA, already raised this argument and a form of it (the facts get us in the weeds, but if anything, it seems the requirement was a bit less sympathetic to religious institutions) was rejected in NY. At least one court noted that the provision protected gender equality. There’s your compelling state interest right there along with the health benefits that don’t pop up with use of peyote.

    Hosanna-Tabor involved ministers, not the right of churches to run hospitals or colleges that serves the general public & employ non-believers and tell them that the insurance their own paychecks pay for cannot be used in a certain way even when the money ultimately comes from the insurance companies.

    The “accounting trick” argument proves too much. It can make any money given to churches for secular reasons a problem too, since “money is fungible” and all that. Strict separatists already make that argument and it is ironic it is made here.

    I’m far from complacent but note the regulation isn’t even probably in its final form and won’t even be in place until next year some time. As with the coverage requirement, suddenly non-ripeness doesn’t matter to conservatives, but still, it is striking.

  3. I agree with Kevin Walsh that RFRA is a far bigger threat to the contraception mandate than is the First Amendment, particularly since HHS has still not figured out how to accommodate those religious institutions that self-insure. I would actually be surprised if Scalia voted against the mandate under Smith, but it would be relatively easy to invalidate under RFRA.

  4. Joe says:

    It is again premature to determine how the HHS will deal with those who self-insure or anything else but that the self-insurance issue only applies to certain institutions. The controversy is much wider in scope & those behind the lawsuit are after bigger game.

    I also wonder why religious institutions who want to run hospitals and schools etc. that serves and employs non-members would have some overall right to self-insure here. How many other matters of general concern can be privately handled? Can they use their own fire inspectors to avoid having to deal with gay civil servants?

  5. Liz Sepper says:

    I have some of the same concerns about the constitutional challenge, although I generally agree that RFRA is the more immediate threat. I do, however, want to challenge the empirical claim that Catholic hospitals are distinctly religious in the way that you say. Catholic hospitals (and the larger chains) are almost entirely managed by laypeople. Nuns have basically disappeared from healthcare (in large part due to age) and to the extent that priests are involved, it is in their role as ministering to the sick, which they also do in secular or other religious hospitals. More to the point, Catholic hospitals are run like any other hospital and have poor records on charitable care and debt-collection practices. Patients are frequently unaware that a hospital is Catholic, all the more so because of the many mergers that put hospitals with secular names and histories under Catholic health system control. Hospitals and the health systems are incorporated and administered separately from the Church. This means that they can be stripped of their Catholic status, as we saw after St. Joseph’s in Phoenix allowed a life-saving abortion, without any meaningful change in operation (or religious or non-religious characteristics).

  6. Peter Swire says:

    I had the pleasure to hear Liz Sepper give a paper this year, and she knows many facts about current practice in Catholic hospitals that I don’t know.

    My own sense is that there is a wide variation among Catholic hospitals in how distinctively religious they are. At least some of the laypeople who lead them, though, themselves are religious and act of out a sense of mission.

    The magnitude of the potential conflict is much greater because my sense is that the market share of Catholic hospitals has grown considerably in recent years as part of the merger wave in health care. Anecdotes are not statistics, but my home city of Albany NY has had all but one of the half-dozen hospitals of my youth merge into St. Peter’s.

    Going back to the realist task of predicting outcomes, though, I wonder how judges and justices with their personal experience will view Catholic hospitals, as the form of decades past or the more secularized version of today. This may be a time where Liz’ point may need to be argued in great detail, or else a judge may act on his or her view of the facts from an earlier period of health care.

  7. I don’t think the current Court would be inclined to look inside the practice of Catholic hospitals to determine whether they are sufficiently religious in operation to avail themselves of constitutional or statutory protection. In Hosanna-Tabor the Court expressed a reluctance to second-guess how religious institutions define themselves, an approach we also saw in Boy Scounts v. Dale.

  8. Marc DeGirolami says:

    The free exercise challenge is consistenly underrated as a predictive matter by those who are insufficiently familiar with the way in which the individual assessment exception to Smith has been interpreted by the federal district and appellate courts (though not, as yet, by the Supreme Court). I understand that it’s juicier to speculate about how the Justices’ respective religious views will influence their opinions, especially since the religion is Catholicism. But though the individualized assessments exception to Smith is certainly no slam dunk for the plaintiffs (indeed, it may even be a hard case to make), it is an argument from doctrine that your lawyer friend seems not to raise. I wrote a post about this issue here: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/04/the-bishops-statement-on-religious-freedom-and-widespread-misunderstanding-of-the-state-of-free-exer.html

  9. Shag from Brookline says:

    Healthcare proselytizing and the First Amendment’s religion clauses go hand in hand? First, do no harm?