Accommodations and Complicity

A few more, perhaps (but unlikely) concluding, thoughts on Wednesday’s Contraceptive Mandate arguments. Warning: some technical legal stuff I perhaps have unpacked insufficiently for easy digestion.

  1. Petitioners’ Intangibility Problem
  2. Respondent’s Circularity
  3. Tipsy’s crossed wires


I think the only problem the government is having understanding our position is that that health plan is somewhat intangible. And I think if you put this in more tangible terms, if the if the consequence of us filing the form was that they would come in to one of the Little Sisters homes and set up shop in a room, they could pay us rent, it wouldn’t cost us a thing. And then they operated a Title X clinic out of our homes? I think everyone would understand that, of course, we are complicit in the coverage that’s provided on our premises. And just because this is more intangible, I  don’t think the principle is any different ….

(Paul Clement, counsel for the Little Sisters of the Poor, in oral argument Wednesday.)

Viewed in this light, the government’s “accommodation” could be viewed as trying to coax the accommodated entities into complicity by giving them plausible deniability: “Whaddya mean, ‘complicit’? All we did was sign a form saying we objected!”

I don’t know if suborning complicity is part of some “long game.” A more benign explanation is that it’s just an artifact of the helter-skelter enactment (“we have to pass the bill so that you can find out what is in it away from the fog of the controversy“), and later regulatory and Executive Order patches, on the Affordable Care Act itself.


[I]t is revealing that the Solicitor General tried to change its characterization of the government’s interest – from promoting contraceptive access to promoting contraceptive access specifically through the petitioners’ healthcare plans. Verrilli made clear that only “seamless” contraceptive access through petitioners’ healthcare plans would meet the government’s claimed interest in the case. Indeed, when Justice Sotomayor tried to make the argument that a two-plan system would pass muster, Verrilli disagreed with her. 83:2-18.

One of the problems with this admission is that the government is essentially trying to define the use of a particular means as the compelling interest in itself. That approach to strict scrutiny is entirely circular; it essentially eliminates the least restrictive means analysis by baking the means into the alleged compelling interest.

(Michael McConnell via Eugene Volokh) I had noticed the Solicitor General’s odd framing of the government’s interest as “seamless” coverage that requires the employee to do nothing. I hadn’t though of it as “baking the means [for effectuating the interest] into the alleged compelling interest [itself].”

McConnell’s whole take is predictably worth reading and, together with my own reading of most of the transcript of argument, suggests that NPR’s Nina Totenberg is whistling in the dark about a 4-4 tie. McConnell:

Religious liberty cases are difficult when there is a genuine conflict between religious convictions and achievement of a democratic goal. How can courts say which of a legislature’s objectives reflect a “compelling” – as opposed to merely a “substantial” – interest, without intruding on the legislative domain? But where, as here, the government can fully achieve its purposes by modest adjustment of means, the judicial task is straightforward. That is why even this deeply divided Court has reached unanimous rulings in all but one RFRA or free exercise case in the last decade.

It is probably too much to hope that the Court will reach anything close to unanimity in a case with the symbolic and cultural valence of this one , but as soon as we get into the weeds of regulatory detail, it becomes obvious that there is no real conflict here. Not a single woman needs to be denied access to contraceptives through a seamless process – and the Little Sisters of the Poor can be left alone to carry on their good works without being required to be the government’s handmaiden for the provision of contraceptives. At a time of rising divisiveness and polarization, it would be greatly calming if the Court could unite in this case to protect the rights of many with absolutely no injury to anyone else, or to the public good.

The biggest wild card may be that the government “has no plans to actually enforce the mandate against the Little Sisters—and, by extension, any of the roughly 500 other religious organizations that have self-insured church plans.” (McConnell elaborating transcript 84:10-24) Has this whole litigation been a pantomime?


It occured to me that I might have crossed my wires Wednesday morning, imputing to RFRA, as a less restrictive alternative, the exemption from the contraceptive mandate enjoyed by, e.g., Churches and the grandfathered plans of Exxon, Pepsi Bottling and others. I went back to check, and it wasn’t as bad as I feared.

However, I must admit that the exemptions of all the grandfathered plans of Exxon, Pepsi Bottling and others are more properly seen as a deficit in “general applicability” under Employment Division v. Smith than as proof of a “less restrictive means” under RFRA, which was meant essentially to restore the status quo ante Smith.

I was reminded of this by some evocative colloquy between some of the “liberal” justices and Counsel Francisco for the Little Sisters at roughly pages 30-37 in the Transcript of Wednesday’s oral argument.

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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.