Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?
posted by Peter Swire
(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law. There are brilliant people who work on it all the time, and I don’t. But I am a law prof who can’t help noticing some things …)
Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.
This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.
The lawyer confidently predicted that the Catholic hospitals would lose. After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote. The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.
My reaction — “here we go again.” It felt just like the over-confident predictions that the individual mandate inevitably would be upheld. And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.
My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.
First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives. He’ll think that the latter is a “bad” law.
Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case. In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.
Third, the views of the Church on contraception are sincere, widely publicized, and long-standing. Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue. This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.
Fourth, many Catholic hospitals are deeply religious institutions. They often have a cross and a Bible in each room. Many nuns and priests work in the hospitals. Providing health care is deeply rooted in the mission of the Church, and has been for many years. In other words, this is not the equivalent of “unrelated business income.” Instead, religion and healing of the sick are thoroughly intertwined.
Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic. I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks. However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals. They will read the briefs in the context of their personal knowledge. I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.
After we went through this list, my liberal friend said that he had adjusted his prediction. He now thought that some of the district court cases, at least, would go for the Church. He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute. His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives. That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.
Currently, there are over 20 challenges by Catholic hospitals to this provision. Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case. Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.
I think that many liberal con law experts were complacent when the individual mandate was challenged. If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.
July 6, 2012 at 10:56 pm
Posted in: Administrative Law, Constitutional Law, First Amendment, Health Law, Insurance Law, Supreme Court
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Responses (9)
Kevin C. Walsh - July 7, 2012 at 12:06 am
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.
Joe - July 7, 2012 at 10:28 am
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.
Jonathan H. Adler - July 7, 2012 at 11:31 am
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.
Joe - July 7, 2012 at 12:39 pm
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?
Liz Sepper - July 7, 2012 at 1:08 pm
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).
Peter Swire - July 7, 2012 at 1:47 pm
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.
Jonathan H. Adler - July 7, 2012 at 2:19 pm
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.
Marc DeGirolami - July 7, 2012 at 2:25 pm
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
Shag from Brookline - July 7, 2012 at 4:52 pm
Healthcare proselytizing and the First Amendment’s religion clauses go hand in hand? First, do no harm?
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