Implementing Health Reform. On February 18, 2016, the Eleventh Circuit joined the Second, Third, Fifth, Sixth, Seventh, Tenth, and District of Columbia Circuits in upholding the accommodation that the federal agencies have offered to religious organizations that object to covering contraceptives in their employee benefit plans. (The Eighth Circuit held the accommodation invalid.) The court reversed the district court's decision in a case brought by the Atlanta Archdiocese and other Catholic organizations, which had ruled against the government below, and affirmed another district court decision in Eternal Word Television Network v. Burwell, which had upheld the accommodation.
The most recent version of the accommodation requires religious organizations that object to covering contraceptives in their employee benefit plans to notify the government of their objection and of the identity of their insurers or third party administrators (TPAs). The government then requires the insurers or TPAs to cover the contraceptives without further involvement of the religious organizations.
Eleventh Circuit judge Jill Pryor, in a lengthy majority opinion, held that the accommodation complies with the Religious Freedom Restoration Act. Judge Gerald Tjoflat dissented at length. While upholding the accommodation, the court enjoined the government from enforcing the mandate against the plaintiffs pending the Supreme Court's decision on this issue (see below).
The plaintiffs argued that the accommodation effectively required them to cause their insurers or TPAs to cover contraceptives or to pay a massive fine and thus substantially burdened their religious beliefs. The dissent agreed, but the majority concluded that the question of causation was an objective legal question, not a matter of subjective religious belief, and that it was the law, not the plaintiffs, that caused the insurers and TPAs to cover contraceptives.
The dissent and majority also disagreed as to whether a less restrictive alternative was available, with the majority finding that none were available and the dissent arguing that the government could set up a separate program to cover contraceptives or simply require the TPAs to cover contraceptives without the plaintiffs having to notify anyone of their objections, a proposal rejected by the majority as unworkable.
The Effect Of Justice Scalia's Death
The Supreme Court has granted certiorari in seven of the cases upholding the accommodation, with oral argument scheduled for March 23, 2016. This may be one of a number of cases affected by the death of Justice Antonin Scalia.
Given the opinions in the Hobby Lobby it is very likely that justices Ginsburg, Sotomayor, Kagan, and Breyer would be ready to uphold the accommodation. Justice Scalia almost certainly would have voted to reverse the decisions below upholding the mandate. It is quite possible that he would have been joined by justices Alito, Thomas, and Roberts, although Justice Kennedy's vote is less certain given his concurring opinion in Hobby Lobby.
If the court now splits four to four, the panel decisions would likely be affirmed, although there is precedent for instead setting tie cases for rehearing once a ninth justice is appointed. A Supreme Court decision affirming the panel decisions would have no precedential value in itself, but it would mean that the accommodation would be enforceable in eight of the nation's 12 circuits, although not in the Eighth Circuit (including Arkansas, Iowa, Nebraska, Minnesota, Missouri, and North and South Dakota). The law would be unsettled in the First, Fourth, and Ninth Circuits, although it would presumably be enforced until a court invalidated it in these circuits.
There has been much discussion in recent days of the effect of the death of Justice Scalia on health law cases. The effect is likely to vary from case to case. In the Gobeille case, in which the plaintiffs claimed that ERISA preempted a Vermont law requiring employer-sponsored plans to participate in the state's all-payer claims database, there are likely enough votes to find ERISA preemption even without Scalia. The Texas abortion case on the other hand, is more likely to result in a four to four affirmance without precedential value, leaving abortion law where it stood before the decision.
Even more clearly, in the public employees' union case, where it seemed quite possible that Justice Scalia would join a five to four majority holding that the First Amendment prohibited the union from charging non-members a "fair-share" fee for the union's representing them in non-political matters, well-established precedent would prevail. The Ninth Circuit below found the law on this issue so clear that it issued a one paragraph opinion, yet the Supreme Court seemed likely to unsettle the law five to four. Many health care workers are represented by public employees unions and will continue to have to pay fees if the Ninth Circuit decision is affirmed four to four.
The big question, of course, is who will succeed Justice Scalia and what direction she or he will take the court. That question may be answered in the next few months, or it may have to await the outcome of the fall election.
from Health Affairs Blog http://ift.tt/1Kv3dlG
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