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July 7, 2012

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Cross-posted from Justia's Verdict.

Last Thursday’s landmark Supreme Court Obamacare ruling and its aftermath offer some key lessons for all of us, neophytes and veterans alike, who follow the Supreme Court.  Some teachings are forceful reminders of things we already knew (or should have known); others break new ground.  Here are my candidates for a “Top 10” list:

10. The Media Does a Poor Job of Predicting Supreme Court Results

The majority of mainstream media coverage of the anticipated ruling during the last few months seemed to assume that major parts of the law, especially the so-called individual mandate, would be struck down, and that the key question was whether other parts of the statute would remain intact.  Many of these assumptions derived from the tenor of the oral argument.  But it turns out Chief Justice Roberts said nothing at oral argument that was inconsistent with his ultimate decision to uphold the mandate.  Nor was prediction the media’s only gaffe; in their rush to get the headline out early, both CNN and Fox News misread the opinions and embarrassingly reported that the Court had struck down the mandate.

9.  Intrade Users Do a Poor Job of Predicting Supreme Court Results

In the weeks leading up to the ruling, the online predictions marketplace, Intrade.com, forecast a 70%–80% likelihood of Supreme Court invalidation of the mandate.  That was up from the 50%–60% Intrade range that had prevailed immediately following the oral argument, and way up from the 30% range that we saw before oral argument.  All of these forecasts proved to be too high, suggesting that Intrade—though it might do a good job with elections—may not be such a good mechanism for Supreme Court prognostication.

8. The Supreme Court Suffers More Problematic Leaks Than We’ve Been Willing to Admit 

One reason Intrade investors (and it’s not clear that a gigantic amount of money ever traded hands) may have bet that the mandate would be struck down was the report of rumors beginning in May that Justice Kennedy, in particular, had voted against the government in the conference after oral argument.  Leaks from the Court before a decision is announced are probably not unprecedented, but they are rare, and should be troubling.  So too should be the post-decision leaks of the past five days indicating that Chief Justice Roberts changed his position during the last few months.  Putting the questions of whether he did so, and if so, why, to one side, the Court is not served if its Justices and staff are so frustrated by forthcoming or past results that they feel the need to share those results with outsiders and to circumvent confidential Court processes, especially so soon after the events in question took place.

7. Justice Kennedy Is Not the Only Justice About Whom We Should Care in Big Cases 

Over the last year—indeed, the last six years—Justice Anthony Kennedy has most consistently been in the majority in hotly contested 5-4 rulings.  Chief Justice Roberts, on the other hand, has been in dissent in many significant criminal procedure decisions.  But in the Obamacare case that defined this term—and perhaps this decade—for the Court, Roberts ruled and Kennedy lost.  It is not an exaggeration to say that the Affordable Care Act case was—in terms of the number of people affected, the amount of money involved, and the symbolic, political and institutional stakes on the line—bigger than all the other seventy-some cases the Court decided this year put together.

6. Chief Justice Roberts Is Not Likely to Vote With the Liberals Consistently

It would be unwise to think that Chief Justice Roberts will side with the so-called “liberal” Justices in controversial cases very often; he remains a solidly conservative jurist whose vote in the Obamacare matter may, in some respects, free him up for the rest of his tenure on the Court to follow his conservative instincts, because the Obamacare ruling will have a long-lasting effect of immunizing him from the charge of partisan cronyism.

5. The Commerce Clause Doctrine That Got Made, While Symbolically Significant, May Not Be Terribly Meaningful

The position of the five Justices (Chief Justice Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito) who opined that Congress cannot, under the Commerce Clause, regulate “inactivity”—but instead must limit itself to regulating preexisting economic activity—would seem to make states’ rights folks happy.  But this new Commerce Clause doctrine—in addition to making little sense—will not likely change the world very much.  As these five Justices pointed out, Obamacare’s regulation of inactivity was unusual if not unique, so there aren’t going to be a lot of other already existing federal statutes that are subject to attack on the ground that they regulate inactivity.  And going forward, Congress can always formally tie its regulation to an economic activity if it is careful.

For example, with respect to Obamacare itself, Congress could have said, not that everyone is mandated to procure insurance or else pay money into the Treasury, but rather than anyone lacking insurance who enters onto a roadway or into any place of business shall pay money into the Treasury.  Voila!  Regulation of activity.  The very ease of creating such alternative regulatory forms is why so many of us found it unthinkable that the activity/inactivity line  should doom Obamacare;  when the question is how, rather than whether, Congress can accomplish something, the doctrinal lines should be clearly and sensibly drawn by the Court in advance, lest federalism rulings devolve into judicial “gotcha” games.

So the real issue in this case was not what effect a requirement that Congress stick to regulating activity only would have in the future; the real issue was whether such a requirement would kill Obamacare itself, a law that was passed when no reasonable mind could have anticipated the Court would impose such a “Simon Says” requirement.  But since Obamacare survived (because five Justices found Congress’ taxation power sufficient, irrespective of Commerce Clause power), the activity/inactivity line isn’t worth losing much sleep over.

4.  The Spending Clause Doctrine That Got Made Could Be Big

By contrast, the new Spending Clause doctrine that got made in the Obamacare case—preventing Congress from discontinuing all Medicaid monies to states that refused to agree to new, expanded coverage—might be a bigger deal.  There are at least two possible ways to read the Court’s new Spending Clause gambit.  First, the Court might be saying that if Congress is ever going to reserve for itself the right to fundamentally alter a federal-state cooperative fiscal deal, it has to be much more explicit at the front end to warn states that they should not expect and rely upon continued funding under terms identical or similar to the initial deal.  If so, that ruling (like the Commerce Clause ruling) is but a legislative drafting guide for Congress for the future (albeit one that might impair Congress’ power to revise existing programs that have been around a while.)

The second possibility is that no matter how explicit Congress’ warnings are, Congress might not be able to rewrite conditional spending deals with states when states in fact have relied on past allocations to their significant detriment.  If Congress is required to maintain deals that it no longer likes, even when it has been crystal clear up front about the possibility that it might radically change funding formulas, simply because states are addicted to the federal funding, that would indeed suggest meaningful new, substantive, limits on Congress.  Such a doctrinal path may be defensible if federalism and protecting states from federal “coercion” are to remain meaningful goals, but it is certainly a new path that was not signaled very clearly in past Court rulings.  There are, to be sure, slippery slopes down such a path, but that (as I have argued about Congress’ power to regulate inactivity) need not be an insurmountable problem.

3. Hypocrisy in the Doctrine of Federalism Remains a Big Problem 

When we put the Commerce Clause and Spending Clause parts of the outcome together, we see that even within a single case, there is a lot of intellectual inconsistency in the federalism doctrine.  A majority of the Court rejects Congress’ power to regulate inactivity because that power presents slippery slopes.  But the same majority (plus two) accepts new limits on Congress’ ability to withdraw funds to states, even though those new limits will require difficult line-drawing.

In the Commerce Clause setting, a majority rejects that idea that the healthcare and healthcare insurance markets have unusual or unique qualities, legitimizing a mandate in those fields but not elsewhere.  And in placing limits on Congress’ ability to withdraw Medicaid funding, that same majority highlights how unusual, perhaps unique, the healthcare and Medicaid programs are.

In the Commerce Clause arena, a formalistic line between activity and inactivity is seized upon.  In the Spending Clause arena, formalism concerning whether a state technically has a choice over acceptance of funding that comes with new strings is rejected, in favor of a more functional analysis of whether states are in fact coerced because of their past reliance.  And so forth.

I personally think that formalistic approaches to federalism that are not undergirded by workable functional theories are unhelpful, but my main point here is that this area of law continues to lack a clear analytic framework that can be used to explain and predict results.

2. Congress Dodged a Bullet, and Should Be More Careful in the Future

Let’s face it:  the Court came within an eyelash of striking down the heart of the biggest federal regulatory law in decades. One reason for this is that five Justices, perhaps because the momentum of the litigation overwhelmed its analytics, embraced faulty reasoning—that was not really grounded in text, history, structure or precedent—in construing the Commerce Clause, and that some Justices seem unwilling to give clear notice in advance to Congress of the technical rules they are willing to impose on the legislative branch in federalism rulings.  But another reason is that Congress does not—and does not even seem to try to—take federalism limits on its powers seriously when it passes legislation.  Why no extensive hearings during Obamacare on the constitutional basis for the mandate?  Why no testimony (which I think would have been available) from leading conservative scholars before enactment suggesting that the mandate would be permissible? Why no explanation from Congress in the record showing there were ways in which it could have formally regulated activity to reach the same result? And why, if the mandate’s fiscal effects on individuals were clear for all to see (as they were), did Congress play games by avoiding the use of the word “tax” for a revenue-raising measure housed in the Internal Revenue Code and implemented by the Internal Revenue Service?  The federalism cases of the past 20 years make one thing clear: a large number of Justices are quite willing to enforce the Tenth Amendment, and Congress should not be so cavalier if it wants to avoid getting burned.

1. Chief Justice Roberts Was the Big Winner in This Ruling 

In giving Congress the benefit of the doubt and upholding the key aspects of Obamacare under the Taxation power clauses, while at the same time cutting back on established understandings of Commerce Clause power and Spending Clause power, Chief Justice Roberts claimed the current Supreme Court as his own, and began to build for himself a legacy of greatness.  Roberts was able to: 1) make some conservative law, consistent with his instincts about federalism; 2) do so in the context of a result that makes it hard for President Obama and others who differ from Roberts’s basic constitutional outlook to complain; 3) do so in a manner that enhanced the credibility of the Court as an independent, non-partisan arbiter.

He was also able to get 7 votes (including two Democrat appointees) to join in to invalidate under the Spending Clause the Medicaid expansion conditions of the Affordable Care Act, the only part of the Act that was trimmed back.  If the Court is going to strike down even a part of the most thoroughly vetted Congressional legislation of the modern era at a time of hyperpartisanship, how refreshingly healthy and remarkable to have a cross-ideological coalition of Justices doing it.

Importantly, Roberts was the only Justice who agreed with every single important thing the Court decided in the case.

None of these accomplishments is diminished by the fact that Roberts might have changed his mind since his initial post-argument stance.  There is nothing wrong with changing one’s mind as a Justice; it says nothing bad about his motivations, but rather only that he came to see the case differently the more he thought about the issues and arguments.  If anything, there should be more mind-changing after oral argument and the initial vote; remember, the draft opinions don’t circulate until later, and it is upon reading the opinions (and additional scholarly commentary that might not have been analyzed before argument) that Justices should decide which ones they really agree with.  Sometimes you think you have a bottom-line position, only to learn that “it won’t write.”

When we widen the focus to make historical comparisons, we see that Chief Justice Roberts shares, or at least appreciates, the instincts of some of his most revered predecessors.  Take John Marshall, whose two most enduring opinions are McCulloch v. Maryland and Marbury v. Madison.  Roberts’s opinion was similar to McCulloch (in which the Court decided Congress had the power to charter the Bank of the U.S.) in making clear that Congress’ powers are finite but broad, and that Congress must be given the benefit of the doubt so long as its objectives are legitimate and sincere, and the means it uses are likely to advance those objectives. Roberts’s ruling was similar to Marbury (the case known for cementing the Court’s competence to declare federal statutes invalid when they run afoul of the Constitution), in that the Marbury ruling allowed Marshall to move constitutional law toward his own ideological sympathies while reaching an immediate result that avoided a direct political confrontation with a President (Thomas Jefferson) who opposed Marshall’s constitutional vision.

Not all chief justices have been successful at pivotal moments in avoiding altercations with oppositional presidents.  Chief Justice Roger Taney (who authored the infamous Dred Scott ruling) picked, rather than passed up, fights with Abraham Lincoln.  And Chief Justice Charles Evans Hughes could not stop his Court from demolishing huge chunks of President Franklin Roosevelt’s early agenda.  Like these two men, Roberts was already Chief Justice when a watershed election swept a reform-minded president into the White House.  But unlike these two earlier chiefs, Roberts—following the lead of John Marshall—found a way to stand his intellectual ground without provoking a battle royal with the Chief Executive.

June 29, 2012

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists?

Co-authored with Professor Alan Brownstein.  Cross-posted from Justia.com.

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.

June 7, 2012

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

Cross-posted from Justia's Verdict.

Any week now, the Supreme Court will hand down its ruling in the Affordable Care Act (ACA, also known as Obamacare) challenge.  The Court will likely address, among other things, the key question whether Congress has the constitutional authority to enact the so-called “mandate” provision, requiring individuals to procure minimum healthcare coverage or instead pay money into the federal treasury.  It’s not surprising that analysts and commentators are gearing up for the momentous decision.

What is surprising, however, is the content of some of the commentary.  In my column today, I offer reaction to an Op-Ed piece Stanford law professor and former federal appellate judge Michael McConnell published in the Wall Street Journal (WSJ) on May 24.  I welcome Professor McConnell’s voice in the Obamacare debate—I have long admired his overall body of work and was openly and actively supportive of his nomination for the federal appellate bench at a time when he was criticized by many on the Left.  And I agree with some of what he says in his WSJ Op-Ed.  But I am also quite troubled by many other points he makes or implies.

What Professor McConnell Argues

It bears noting at the outset that Professor McConnell does not say he thinks the challengers to Obamacare are constitutionally correct—that the mandate exceeds Congress’ constitutional powers.  (My brother, Yale law professor Akhil Amar, noted in Slate a few months ago that most conservative constitutional scholars have not expressed agreement with the challengers’ position—an observation that accords with my own sense.)  Instead, Professor McConnell finds the “health-care case [to be] hard,” and says that the challengers’ argument “may [reflect] a correct reading of the Constitution, or not, but it must be taken seriously.”

I’m not sure I find the case as hard as Professor McConnell does, but I certainly don’t disagree with him that the challenge must be taken seriously.  Indeed, I and many others who have written scholarship and other commentary on the case have done so because we do take the matters raised therein seriously.  All of that is why I am troubled by what Professor McConnell goes on to say.

Professor McConnell writes to chastise “liberal law professors . . . [who] claim[] that it would be ‘hypocritical’ and ‘partisan’ of  [conservative Justices] to invalidate legislation passed by Congress when they generally oppose ‘judicial activism.’  It appears the professors’ idea of sound jurisprudence is that their favored justices are free to invalidate statutes that offend their sensibilities whether or not the words of the Constitution have anything to say on the matter, as in the case of same-sex marriage or partial-birth abortion, and even if the Constitution seems to endorse it, as in capital punishment. But if conservative justices have the temerity to enforce actual limits on government power stated in Article I, Section 8—over liberal dissents—then they are acting as shameless partisans.”

Professor McConnell asserts that “[i]f liberal supporters of the health-care law were as confident of the merits of their position as they claim to be, they would offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans.”

Professor McConnell also says that “[i]t seems unlikely this one-sided definition of ‘activism’ will persuade anyone. Judicial review might be aggressive and it might be deferential, but there cannot be one set of rules for liberal justices and another set for conservatives.”

The First Flaw in McConnell’s Argument: A Straw Man Concerning the Supposed Absence of Textual, Historical, Structural, and Doctrinal Arguments in Favor of the Mandate

It’s hard to know precisely whom Professor McConnell has in mind when he excoriates “liberal law professors;” many of us among the group of analysts who think Obamacare is constitutional have not spent our time simply hurling names at those with whom we disagree.  But even as to those professors who have been most stridently critical of the conservative Justices, Professor McConnell’s analysis misses the mark.

First off, his criticism is based on a straw man (forgive the gendered term, but “straw person” is too awkward).  “Liberal law professors,” or at least the ones I see and hear, don’t ground their allegations of hypocrisy and partisanship with respect to the possibility of high Court invalidation of Obamacare on a claim that conservative justices have generally embraced a deferential form of judicial review, and that striking down Obamacare would be inconsistent with such professed deference.  (Conservative Justices have not been, and have not said they should be, necessarily deferential to elected branches in exercising judicial review.)

Instead, folks who say that a ruling by the conservative Justices striking down Obamacare would be hypocritical and perhaps partisan say so precisely because  arguments (to use McConnell’s words) “based on text, history, structure and precedent”—the very tools  conservatives traditionally contend should be used in constitutional interpretation—cut in favor of, not against, the constitutionality of Obamacare.

Professor McConnell asserts that “liberal supporters of the health-care law” should “offer actual legal arguments, based on text, history, structure and precedent, instead of labeling justices with whom they disagree as hypocrites and partisans” (emphasis added).  But supporters of the mandate have indeed offered those arguments, and it is precisely because those arguments seem to have been ignored by many conservative Justices at oral argument that some defenders of Obamacare have cried hypocrisy and partisanship.

I am genuinely puzzled as to why Professor McConnell feels that there have been no textual, historical, structural and precedential defenses of Obamacare.  I, my brother Akhil, and many other scholars have written numerous law review articles laying out just such arguments.

Take the constitutional text.  The question here is whether any words in Article I give Congress the power to impose healthcare-coverage procurement mandates.  As many of us have pointed out, certainly no one doubts the Congressional power to mandate the military draft, militia service, jury service, census participation, etc.  And nothing in the constitutional text under which these activities are permissibly mandated explains why affirmative conduct can be required in those realms, but not under the Commerce Clause, which gives Congress the power to “regulate” commerce “among the several States.”

By comparison, Article I permits Congress to “raise and support” Armies, but there is nothing in the text of this clause that indicates why mandatory military service is permissible. “Raise and support” could textually be read to mean “create incentives to voluntarily generate.”  But the Supreme Court had little trouble holding in 1925 that this clause, combined with the Necessary and Proper Clause, permitted Congress to mandate military service—in other words, to regulate inactivity and require affirmative activity—because the Court reasonably concluded that Congress should not be dependent on the inclinations of potentially reluctant individuals to accomplish Article I’s enumerated objectives.

More generally, the word “regulate” (used in the Commerce Clause) does not foreclose the compulsion of activity, including the compulsion of commercial activity. “Regulate,” as defined in language dictionaries, means, among other things, to “direct.”  Moreover, when we turn to the Constitution itself as a possible dictionary, we see that it uses the word “regulate” at least sometimes in ways that include a power to mandate activity.

The militia in which Congress can compel membership, for example, is referred to as one that is “well[-]regulated,” in the Second Amendment.

Congress’ power in Article I to “regulate the [v]alue” of money would seem to permit Congress, under certain circumstances, to require individuals to exchange their currency for something else that Congress reasonably believes would provide stability to the monetary system of the country.

Congress’ power to adopt rules for the “[r]egulation” of the land and naval forces undeniably allows Congress to mandate activity on the part of otherwise disinclined men and women in the armed forces, when such mandates are reasonably helpful to the national defense.

Congress’ power to undertake “[r]egulation[ ]” of the Supreme Court’s appellate jurisdiction is what gives Congress the power to create such jurisdiction in the first place—”regulate” as used there includes the power to create and control.  And there is much more.  In short, to say no arguments about text have been made by Obamacare supporters is simply to ignore the scholarly discourse.

The same is true for historical, structural and precedential arguments.  As to history, the record makes clear that the Commerce Clause was designed to allow Congress to deal with interstate economic externalities.  No one could really doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems.  After all, insurance and healthcare providers are usually national, or at least regional, operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based insurance coverage.  Nor is it disputed that Congress’ enactment of the individual mandate provision was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects.  Professor McConnell says that these observations about the health care market are not “grounded in any principle based in constitutional text, history or theory,” but that assertion itself ignores the very history behind, and the theory underlying, the Constitution—history and theory that Professor McConnell rightly recognizes as central.

History also debunks the notion that mandates to purchase are, as a general rule, constitutionally novel or out-of-bounds.  For example, the Militia Act of 1792 required able-bodied men to become Federal militia members, and to arrive ready to serve.  Men were required to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets, and a knapsack.  Men owning rifles were required to provide a powder horn, 1/4 pound of gun powder, 20 rifle balls, a shooting pouch, and a knapsack.  Even if novelty were a basis, in and of itself, on which to object to an exercise of Congressional power—and it is not—mandates to procure are not novel, but rather go back to the founding.

Professor McConnell is also wrong to suggest that no structural arguments defending the mandate have been made.  When one looks at the entire structure of the Constitution and compares the already-recognized bans on mandates—the Third Amendment’s prohibition of the quartering of troops in private homes during peacetime, the Fifth Amendment’s protections against government mandating self-incrimination and the surrender of property without just compensation, the First Amendment’s protection against mandating that individuals be vessels for government speech, and the so-called anti-commandeering federalism principle prohibiting Congress from mandating that state governments exercise their regulatory power on behalf of federal goals—a pattern emerges:  Congress generally cannot merely use individuals or states as the instruments, or tools, of its own objectives.

But when individuals (or states) are, by contrast, acting as free riders, and thus contributing to the problem—rather than being just handy tools to fix a problem created by others—then mandates are much more constitutionally permissible.  This explains why the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are contributing to problems only passively. Military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, “public goods” in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem that Congress is trying to solve when it imposes mandates in these areas.  So long as the mandate is “congruent and proportional” (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable.

This explains why, for example, the quartering of troops is different from the draft.  Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this structural prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization.  Obamacare’s mandate is, in substantial part, a response to the free-rider problem—a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package.  The individuals subject to the mandate would—if they were free from the mandate—become part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

Finally, again contrary to what Professor McConnell suggests, believers in Obamacare’s constitutional validity have made many arguments based on precedent, especially to answer the “slippery slope” problems that seem to worry Professor McConnell and some of the conservative Justices.  Professor McConnell writes, “defenders of the health-care mandate are unable to identify any line between what they say Congress can do and what it cannot.”  Nonsense.

As many of us have pointed out, some of the important limiting principles come from Gonzalez v. Raich, where the Court permitted a federal ban on the possession of all marijuana, no matter how small the amount or how local the use.  That result too, created slippery slope problems, but the Court made clear that even as the federal government might sometimes ban the possession of things, the government’s power in this regard is not unlimited.  As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such punishments are necessary to carry out a comprehensive regulatory scheme—the Controlled Substances Act—that governs a robust and interstate market in drugs.  Without that comprehensive regulatory scheme respecting an interstate market as an anchor, and a clear tie-line connecting the ban on possession to the regulation of the interstate market in illicit drugs, the ban on marijuana possession would have exceeded Congress’ Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is itself a comprehensive regulatory scheme governing interstate commerce and interstate spillover effects, and the individual mandate plays an important role in furthering central pieces of that regulatory framework.

The Bigger Problems With Professor McConnell’s Argument Come From What Some Might Read Him to Be Suggesting

Professor McConnell’s mistaken suggestion that Obamacare’s defenders make no arguments based on text, history, structure and past precedent is troubling to be sure.  But there’s another flavor to his criticism that leaves an even worse taste in my mouth:  He might be read as suggesting that if liberal law professors support reading the Constitution to protect same-sex marriage, partial-birth abortion and abolition of the death penalty, then they are estopped from complaining about “aggressive” (his word) judicial review to support conservative ends.

Professor McConnell never quite says it that way—and I hope that he wouldn’t embrace this position–but many people might glean this to be his implication because, absent such an implication, I’m not sure why he mentions in his Op-Ed liberal constitutional stances concerning same-sex marriage, partial-birth abortion and, capital punishment, and the free-form constitutional interpretive modes they involve.

Perhaps he’s saying simply that liberal law professors are themselves hypocritical and partisan to insist that conservative Justices in the Obamacare case exercise judicial review in a restrained way, when the liberal profs do not themselves believe in restraint in other areas of constitutional law.  Maybe that’s true (or maybe liberal law professors have a theory as to why the individual-liberties aspects of the Constitution require different interpretive modes than do federalism questions—I personally might not find such a distinction altogether persuasive).  But the point that some liberal law professors might be partisans and hypocrites hardly seems like a point worth making.  Liberal law professors don’t decide cases.  They don’t make law.  There’s a reason (many reasons, actually) why we don’t give them any real, immediate, decisionmaking power.

But Justices do have tremendous authority we have delegated to them, and they should exercise it in a way that is free from hypocrisy and partisanship.  And if liberal law professors accurately point out hypocrisy on the part of Justices who purport to care about text, history, structure and precedent, these professors will have performed a useful function, even if the professors themselves are guilty of even more intellectual dishonesty than the Justices whom they lambaste.  So the hypocrisy of law profs really wouldn’t bear on whether their criticism of the Court—the subject of Professor McConnell’s Op-Ed—is appropriate or not.

Even if the hypocrisy, partisanship and lawlessness were being practiced by other members of the Court, that should not, I would hope, cause Justices to abandon their own interpretive principles.  So, for example, if Justice Kennedy thought that Justice Breyer’s dispositive vote to strike down Nebraska’s ban on partial-birth abortion (one of Professor McConnell’s examples) in Stenberg v. Carhart was completely inconsistent with the conception of responsible judicial review that Justice Breyer has espoused in a series of books written for the broader American public (and one could argue that there is some tension there), Justice Kennedy should not, as a general matter, change his own approach to judicial review.

When Professor McConnell says that “there cannot be one set of rules for liberal justices and another set for conservatives,” I pray he does not mean that conservative jurists can and should abandon their aversion to judicial activism (however defined) because they see liberal jurists acting in unrestrained and unprincipled ways.

There might be some specific doctrinal areas where a Justice might think that wrong-headed or hypocritical rulings by earlier Courts or other Justices have created a sub-optimal body of law, such that the Justice might have to decide a particular present or future case in a way that is different from how s/he ordinarily would have preferred (stare decisis, or deference to past precedent, is one example of the effect that earlier methodological or substantive mistakes can have on future outcomes).  But generally speaking, “retaliatory activism”—by which I mean the abandonment of a Justice’s own principles because other Justices are not playing fair—is a dangerous and inadvisable game.  It is also something that contributes to the popular and unhealthy perception that the Court is no different from and no better than the overtly political branches of government in DC.

So to the extent that anyone understands the essay from Professor McConnell—a venerable conservative jurist and scholar who was often thought to be on Republican Supreme Court short-lists a decade ago—as suggesting that conservative Justices are to be forgiven for hypocrisy or partisanship because liberals engage in it (or vice-versa), I would urge a different reading of his words.

April 12, 2012

The High Court Needn’t Worry About Sliding Downhill: An Evaluation of the “Slippery Slope” Concerns Expressed at the Oral Argument in the Challenge to the Mandate Provision of the Affordable Care Act (Obamacare)

This entry is cross-posted from Justia.com.

Now that the dust is settling from the Supreme Court's oral arguments held two weeks ago in the challenge to the Affordable Care Act (ACA)-known by critics and some supporters as "Obamacare"-analysts are looking back on the questions and concerns raised by various Justices to see what the road ahead might or should look like.  In my column today, I address one of the key features of the oral argument landscape-the (to my mind, unwarranted) fear of a slippery slope that the individual mandate provision seemed to engender.

A Recap of the Oral Argument on the Constitutionality of the Individual Mandate Provision

Much of the questioning concerning the individual mandate provision covered familiar and easy terrain. No one seemed to doubt that the healthcare and healthcare insurance markets involve true interstate commercial problems.  After all, insurance and healthcare providers are usually national or at least regional operations; folks who cross state lines get sick and must be cared for away from home regularly; and people are often unable to relocate to another state for fear of losing their employer-based coverage.  Nor was it disputed that the individual mandate was sincerely motivated by, and closely related to, the regulation of these interstate markets and interstate spillover effects.  Those two conclusions are usually sufficient to justify the exercise of Congressional power under the Commerce Clause of the Constitution.

But then things got more treacherous.  The problem, suggested by numerous conservative Justices, was the slippery slope they saw in the mandate-the idea that Congress was requiring individuals to buy something.  The fact that Congress was not just regulating existing transactions, but rather compelling commercial activity where before there was only inactivity, raised red flags. If the feds can require each person to buy health insurance, what can't they force people to purchase?

As was widely reported, various Justices seemed worried: Would Congress also be able to force people to buy cell phones, or broccoli, or burial services?  Once you start allowing Congress to compel people to purchase goods or services, aren't you in a freefall that has only one conceivable endpoint-a world in which there are no limits to the federal government's Commerce Clause power to regulate the lives of all Americans.

This slippery slope concern did not originate at oral argument.  As one prominent challenger to the ACA, Randy Barnett, had put the point in an earlier essay:

Congress can mandate individuals do virtually anything at all on the grounds that the failure to engage in economic activity substantially affects interstate commerce. Therefore, [a theory that permits the healthcare law] would effectively obliterate, once and for all, the enumerated powers scheme that even the New Deal Court did not abandon.

Is the Fear of Falling in This Realm Reasonable?  One Already Established Tool: The Requirement of Proximity to Regulation of an Interstate Commercial Problem

I well understand the felt need for the courts to have tools to keep Congress within some bounds in the Commerce Clause and other areas.  As I have written elsewhere, I do not think that the so-called "political safeguards" argument advanced by the Court in Garcia v. San Antonio Metropolitan Transit Authority-that is, the argument that states do not need judicial protection because state government has adequate leverage over the federal government due to the role state governmental actors play in the selection of federal officials -fully works in light of changes to the Constitution over the decades. Nor do I agree with Justice Breyer's dissenting argument in U.S. v. Morrison that, given the realities of the modern world, it would be constitutionally unproblematic to say that Congress should be able to reach any conduct, no matter where it takes place and no matter how remote the effect it has on interstate economic markets may be.

But while I think courts should not abdicate a robust role in policing the boundaries of federalism, I also think that the tools judges should use must be of the right shape and size for the job. And I am struck by the fact that at the oral argument over the mandate, none of the Justices or lawyers pointed out crisply that we are already poised on equally treacherous slopes in interpreting the Commerce Clause, and that the Court has demonstrated that it has plenty of pitons available to arrest our slide and limit the scope of federal power.  As my colleague Alan Brownstein and I have pointed out in various fora, the slippery slope danger has been present in Commerce Clause doctrine for the past 50 years, and the mandate doesn't add slopes that are any more dangerous than those we've already been dealing with.  In other words, there is no persuasive basis for thinking that the individual mandate will create a steeper or more slippery slope-one that is less susceptible to judicial or political handholds and footholds-than those hazards we live with exist under current doctrine.

To understand this point, it's useful to remember that the Court has already determined that Congress has authority to prohibit people from possessing things under the Commerce Clause.  Just seven years ago, in Gonzales v. Raich, the Court held that the feds can ban the possession of marijuana.  It didn't matter how a person obtained the marijuana, how much he or she possessed, or whether he or she planned to consume rather than sell it.  Possession itself could be prohibited.

As Alan and I have observed, this would seem to put us on hazardous ground!  Does Raich mean that Congress can also ban the possession of cars, televisions, clothes, the tomatoes you grew in your garden, or the broccoli in the refrigerator?  What can't the federal government do, if it can ban the possession of all goods?

Yet the Court has said that even as the federal government might sometimes ban possession of things, the government's power in this regard is not unlimited. As Justice Scalia observed in his concurring opinion in Raich, the possession of marijuana in particular can be punished because such penalties are necessary to carry out a comprehensive regulatory scheme-the Controlled Substances Act-that governs a robust and interstate market in drugs.  Without that comprehensive regulatory scheme as an anchor and a clear tie-line connecting the ban on possession to the regulation of the market in illicit drugs, the ban on marijuana possession would exceed Congress' Commerce Clause power.

Of course, such an argument cuts in favor of, not against, the individual mandate in the healthcare reform law. The Affordable Care Act is a comprehensive regulatory scheme governing interstate commerce, and the individual mandate plays an important role in furthering that regulatory framework.

In other words, upholding the mandate in the Affordable Care Act does not mean upholding any and every random, hypothetical mandate a crazy Congress might enact, even assuming that such a rogue Congress could survive in office.

Or consider another example: No one doubts that under current doctrine the government can often regulate ongoing economic activity-the sale and purchase of goods and services.  Once we enter commerce as producers, sellers, or buyers, the government can regulate our economic transactions and activities.  That is widely accepted.

But think about the slippery slopes created by this acknowledged power.  Let's go back to broccoli, the commodity of choice during the oral arguments.  Congress might, instead of requiring purchase and consumption of broccoli, try to prohibit grocery stores from selling any vegetable-or any food-other than broccoli.  Or it might require people to purchase broccoli as a condition of purchasing other food, or other goods and services.  Can Congress pull us down this cliff?  If so, then who cares whether Congress can compel specific purchases to be made directly?  It can effectively compel people to buy designated goods by regulating or prohibiting consumer decisions to purchase other things.

Happily, I do not think the American people have cause for serious concern here either.  Some commercial regulations would lack the constitutionally required minimal rationality. In the extremely unlikely event Congress conditioned the purchase of, say, cars on the purchase of broccoli, the law would fail even deferential rational basis review by courts.  Moreover, some connections between a particular piece of a law and the larger comprehensive scheme regulating commerce that justifies Congressional attention in the first place are simply too attenuated to be upheld as constitutional.

The key point here is that these slippery slopes already exist. We have been standing on them for years under long-accepted interpretations of the Commerce Clause, and have held our position without tumbling into the abyss of unlimited federal regulatory authority.

Tools That Can Be Used for Limiting Powers in Settings Where Mandates Are Already Accepted

Another way to see that the Court already has the tools it needs, without creating a ban on commercial mandates, is to look at areas in which mandates are undeniably permitted-settings where people can't challenge government action merely because the government is affirmatively requiring something, insofar as affirmative requirements are concededly within Congress' power.  Consider, for example, a Congressional law that requires young persons to show up for military service. So far, so good-Congress' power to raise and support military troops has been understood to justify the draft.  But imagine further that Congress mandates that the men and women who might be drafted must procure health insurance because the government wants to make sure that its future draftees are fit and ready for action right away. If required health insurance is permissible under this reasoning, then the challenge to the ACA disappears because, of course, Congress is entitled to use not just the Commerce Clause, but rather all the powers within its enumerated panoply.  And if required healthcare is not justifiable under the power to raise armies, that result certainly does not follow from any activity/inactivity distinction; the draft itself obliterates that line.  Instead, it would come about because the relationship between raising armies and required healthcare is too attenuated.

Or imagine further that Congress mandated that all persons eat at least two servings of green vegetables and exercise vigorously for at least half-an-hour per day, on the theory that potential military troops need to be well-nourished and healthy. And so forth. If Congress is to be reined in from requiring whatever it might dream up, the limit cannot be found in any activity/inactivity line, but rather in some notion that there must be a proximate nexus between the power that Congress is given in the Constitution and the means that Congress has chosen to implement that power.  Notions of proximate relationship-a limit on attenuation, if you will-make some sense and probably do a good job of explaining the results in cases (like Lopez and Morrison) where the Court has struck down laws on the ground that they exceeded Congress' Commerce Clause power. But if requirements of proximity and limits on attenuation are needed and sensible, they demonstrate that the proffered activity/inactivity line isn't doing, and really can't do, the work.

Another Possible Tool Against Federal Overreaching-The Anti-Instrumentalization Principle

None of this is to say that attenuation is the only device the Court has-or should have-to keep Congress in check.  Not all congressional mandates are constitutionally permissible simply because they advance some otherwise legitimate federal goal in a direct and non-attenuated way. The Constitution itself, in some of its provisions and doctrines, prevents Congress from coercing certain kinds of action. As I and other commentators have pointed out, the Third Amendment prohibits the quartering of troops in private homes during peacetime, the Fifth Amendment prevents government from mandating self-incrimination and the surrender of property without just compensation, the First Amendment prohibits government from mandating that individuals be vessels for government speech, and the Supreme Court has held in the so-called anti-commandeering cases, New York v. United States and Printz v. United States, that federalism principles prohibit Congress from mandating that state governments exercise their regulatory power on behalf of federal goals.

On the other hand, the federal government can mandate taxes, and jury and military service, among other things, even if the individuals so mandated are doing nothing other than existing.

The question then becomes: when is a mandate that would in fact promote a legitimate end nonetheless constitutionally problematic? Although no simple line can be drawn to connect all the dots, it is noteworthy that with respect to those mandates that are acknowledged to be constitutionally impermissible, generally speaking the individual or entity being mandated is not contributing to the problem Congress is trying to solve in any distinctive way, or in a way that explains the extent of the mandate. For example, in the anti-commandeering cases, the states that were commandeered were themselves not in any way standing as an obstacle to Congress' ability to otherwise implement its regulatory objectives. They were, simply put, not part of the problem Congress was trying to fix, but instead had simply declined to be the solution Congress wanted them to be.

So too for the ban on quartering and the ban on compelled speech. In those instances, Congress might prefer that the individuals being mandated assist Congress with its goals, but the mere existence of these individuals does not create the problem (the need for troop accommodations, or the need for governmental speech) to which Congress is reacting, or at least it does not create the kind of problem that would explain imposing a focused mandate on those persons in particular. Instead, government could be said to be using the mandated persons as its own instruments for the accomplishment of an objective not especially related to those individuals, except in the sense that they are convenient implements. Even in the takings context, as Professor Jed Rubenfeld has creatively and powerfully argued, when the government is not "using" private property for its own ends, but rather is preventing the private property owner from exporting externalities to other people, a taking that triggers a requirement of just compensation is less likely to be found.

On the other hand, military defense, government spending (on roads and other infrastructure), and a system of criminal and civil justice requiring juries are, broadly speaking, "public goods" in the sense that people benefit from them and have an incentive to be free riders unless they are mandated to contribute. The free riding is itself a big part of the problem Congress is trying to solve when it imposes mandates in these areas. So long as the mandate is "congruent and proportional" (to borrow a phrase from another federalism context) to the free-rider problem that the very existence of the individuals being mandated is creating, then the mandate seems less objectionable. This explains why, for example, the quartering of troops is different from the draft.  Placing a narrow, focused, and selective mandate on a few homeowners to bear the costs of a military that everyone benefits from is not a proportionate response to a free-rider problem in the way that a random and broad-based draft that seeks sacrifice from thousands, if not millions, of people is.

When viewed through this prism, the healthcare mandate would seem to fall on the permissible side of any implicit constitutional line safeguarding against instrumentalization. The ACA's mandate is, in substantial part, a response to the free-rider problem-a problem that itself is exacerbated by other undoubtedly permissible elements of the healthcare reform package. The individuals mandated are-if they are free from the mandate-part of the problem, rather than merely being a convenient part of a solution to problems created by other folks.

In a later column, I will leave slippery slopes behind to take up a related but different aspect of the ACA mandate that seemed to generate anxiety-its ostensible novelty.

April 12, 2012

The “Other” Case This Term Testing Congress’ Enumerated Powers to Pass a Healthcare Law: Coleman v. Court of Appeals of Maryland and FMLA

This entry is cross-posted from Justia.com.

These days, all eyes are (understandably) focused on the recently concluded Supreme Court oral arguments in the challenge to the Affordable Care Act.  Yet the Justices quietly handed down another case in the last few weeks, Coleman v. Court of Appeals of Maryland, in which the central attack on a federal statute was in some respects similar to the attack on Obamacare.  Both cases raise the central question whether Congress lacked enumerated power to pass a particular statute.

In Coleman, a five-member majority of the Court struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability for failing to provide the required unpaid leave to employees for self-care for a serious medical condition.  To my mind, Coleman is noteworthy not only because the FMLA is an important statute in its own right, but also because Coleman illustrates the softness (and perhaps also the volatility) of the doctrines that govern the scope of federal powers.

What FMLA Requires

Passed by Congress almost 20 years ago, FMLA entitles each employee of a covered employer to take up to 12 weeks per year of unpaid leave for any of three purposes: (1) to deal with the birth or adoption of a child; (2) to tend to the needs of a family member with health problems; and (3) to cope with the employee's own serious health condition, when that condition interferes with the employee's ability to perform the job.  Employers who fail to abide by FMLA's requirements are subject to court-ordered compliance, and also subject to damage liability for past violations.

There is no doubt that Congress has the power, under the Commerce Clause of the Constitution (the very provision at the heart of the Obamacare challenge) to regulate generally how employers treat employees, including the matter of how much leave employees are provided.  So private-sector employers have no basis for challenging the FMLA.  But state-level government entities, including state employers, enjoy protection under the Eleventh Amendment, a constitutional provision that complicates things.

Under the prevailing understanding of the Eleventh Amendment, while state entities are subject to judicial commands to comply with legitimate federal statutes going forward into the future, suits seeking money damages against a state entity for a past violations are barred unless the state has consented to the suit, or unless Congress has validly abrogated-i.e., nullified-the state's sovereign immunity from such a suit.

In Coleman, where an employee of the Maryland court system alleged that his employer had not given him the required time to tend to his own serious medical condition, and sued for damages, the State did not waive its Eleventh Amendment immunity.  Thus, the issue for the Supreme Court became whether Congress, by passing the self-care leave requirements of the FMLA, had validly stripped states of their immunity.

The Test For Congress's Ability to Abrogate States' Eleventh Amendment Immunity

In recent years, the Court has allowed Congress to abrogate the Eleventh Amendment shield for states only under very limited circumstances. First, Congress must be acting pursuant to its powers under Section 5 of the Fourteenth Amendment, which gives Congress "the power to enforce, by appropriate legislation, the provisions of" the rest of the Fourteenth Amendment. (Congressional laws enacted under constitutional provisions other than Section 5, such as the Commerce Clause, cannot strip states of their immunity.)

Second, in order to be a valid Section 5 enactment, the congressional statute must remedy constitutional violations that states have committed, or are likely to commit. A congressional law that requires states to do things that the Constitution itself does not come close to requiring cannot be said to "remedy" violations of the Constitution itself. Such congressional statutes, the Court has held, are not "congruent and proportional" to the constitutional rights that the statutes are supposed to be safeguarding.

This is not to say that a congressional statute may not go any farther than the Constitution itself in the limitations it places on states. Rather, it is to say that any congressional prophylactic must be carefully tailored, so that the congressional "remedy" remains closely tied to the substantive constitutional guarantee itself.

The Previous Supreme Court FMLA Section 5 Ruling

In Nevada Dep't of Human Resources v. Hibbs in 2003, the Court (somewhat unexpectedly) held that the family-leave requirement in FMLA-that is, the requirement that employers give employees leave to care for sick family members-was validly enacted under Section 5 (and thus could be a basis for damage suits against state employers).  The Court reached this result based on its determination that the family-leave provision was a reasonably well-tailored effort by Congress to deal with gender discrimination in the public workplace, in light of the fact that employers, including public employers, had some history of structuring and implementing their family-leave policies in gender-based ways.

The Court came out the other way in Coleman.  Writing for himself and three others, Justice Anthony Kennedy found no pattern of gender discrimination with respect to the self-care leave provision.   In the self-care leave part of the statute, he wrote, Congress was responding to the economic burdens created by illness-related job loss.  Congress was, in other words, concerned with employer discrimination based on illness, not employer discrimination based on sex.  Justice Kennedy noted that, at the very worst, when public employers deny self-care leave, there might be a disparate impact that hurts women more than men (because single parents tend to be women, and the self-care leave provision helps single parents a great deal).  But he quickly added that any such uneven impact, unaccompanied by demonstrable malicious gender-discriminatory intent, is not a constitutional problem that Congress can easily remedy.

Coleman's Significance

Coleman is noteworthy in a number of respects.  First, FMLA is a significant workplace statute, and when its provisions can be violated by some employers without the threat of damage liability, aggregate compliance is likely reduced.

Indeed, putting damage relief to one side, since the self-care leave section is not supported by Congress' power under Section 5 of the Fourteenth Amendment, I  suppose there might be some possible question now about whether this provision of the FMLA can be enforced by courts against public employers even via forward-looking judicial relief.  Although the self-care leave provision is valid under the Commerce Clause as to private employers, it is arguably not a law of "general applicability" (insofar as only larger and education-sector private employers are covered, while all public employers are covered) that can apply to state government under the Commerce Clause and the famous Garcia v. San Antonio Metropolitan Transit Authority case.

Second, although we may tend to forget this point in modern times, when the Court strikes down any provision of any Act of the duly elected Congress, that should be a momentous event in our constitutional democracy.

Third, Coleman highlights the pivotal role that Justice Kennedy plays in the federalism realm (as he does in most other important constitutional realms).  Although Kennedy wrote in Coleman for four, rather than five, Justices, Justice Scalia's separate opinion was penned primarily to underscore his view that Congress should be limited under Section 5 of the Fourteenth Amendment even more tightly than current doctrine permits. More specifically, Scalia opined that in most settings even "congruent and proportional" remedies are impermissible if they extend beyond the precise constitutional violations themselves.

So Justice Kennedy's opinion represents the views that control the Court's outcomes in this area.  And the fact that Kennedy was selected to write that opinion suggests that he is viewed by his colleagues as the fulcrum, the Justice whose vote will dictate results.  That is one reason why, in the Obamacare challenge, everyone expects he will be in the majority-that his views will correspond to the law of the land, so to speak.  (That is also why his aggressive questioning of the U.S. Solicitor General defending Obamacare last week was unsettling to observers who expect the Court to uphold the Affordable Care Act.)

Fourth, Coleman highlights the manipulability (or perhaps even the volatility) of the "congruence and proportionality" test.  The Court has used this test in a number of cases in ways that seem inconsistent.  I myself have written about how the analysis and methodology used by the Court in Hibbs is in profound tension with, and more generous than, earlier cases in which the Court had struck down laws as being beyond Section 5 power.

Although Coleman perhaps can be reconciled with Hibbs, the distinctions between the two cases are pretty fine.  As Justice Ginsburg pointed out in her Coleman dissent, Congress did have some anecdotal evidence in FMLA hearings conducted between 1986 and 1993 that some women were fired for needing self-care leave after becoming pregnant or giving birth.  Although the evidence of gender motivation with respect to the implementation of self-care leave policies might not be overwhelming, neither was the evidence that public employers were biased in their family-leave policies voluminous in Hibbs, and yet it sufficed there.

And you don't need to compare other cases to Coleman to see the beating that the "congruence and proportionality" test took there.  Just within the writings in Coleman itself, Justice Scalia (as noted above) wants to replace that test with something tougher, and Justice Ginsburg wants to replace that test with something more deferential to Congress.  Justice Scalia was so sarcastic about the test's "flabb[iness]" that he said he thought Justice Kennedy's opinion and Justice Ginsburg's diametrically opposed opinion were both "faithful application[s]" of the test.  Whether the "congruence and proportionality" yardstick-which remains the law governing Section 5 for now-remains intact in the intermediate term remains to be seen.

Finally, Coleman is interesting because of another unsuccessful argument that was made on behalf of the self-care leave provision:  FMLA supporters argued that the self-care leave provision was within Congress' powers because it operated to make more meaningful the family-leave provision that had already been upheld in Hibbs.  The idea seemed to be that the inclusion of the self-care leave requirement in FMLA balances the overall amount of leave that will be taken by men and women, and thus reduces possible hiring discrimination against women that might ensue if only the family-leave provision-a provision of which women make more use than do men-were in place.

Justice Kennedy found this argument to be unsupported by any empirical evidence.  And the issue of the linkage between different parts of a comprehensive statute might also loom large in the Obamacare case, where the government argues (among other things) that the individual mandate provision is within Congress' powers because it operates to make more meaningful other provisions, including the ban on insurance company discrimination against persons with pre-existing conditions.  Of course, the government has much more evidence (as well as commonsense intuition) to empirically link the two Obamacare provisions than was present in Coleman to link the two FMLA provisions.  Moreover, the rigorous "congruence and proportionality" test concerning Section 5 of the Fourteenth Amendment would seem to require more of Congress than would the more giving standard that governs Congress' powers under Article I.  But, in the end, in the Affordable Care Act as in Coleman, Justice Kennedy's sense of nexus and fit will probably drive the outcome.

March 12, 2012

Moot Court Event on "Obamacare"

I'm heading to Los Angeles tomorrow to take part in a special moot court event on President Obama's sweeping health care reform legislation.  UC Davis School of Law is a co-sponsor of the event.  Here are the details:

Tuesday, March 13
6:00 - 7:30 P.M.
The California Endowment - Yosemite Hall
1000 North Alameda St.
Los Angeles, CA 90012

Just two weeks before the United States Supreme Court hears oral arguments on the constitutionality of the Affordable Care Act, The California Endowment, Southern California Public Radio, and distinguished law schools are bringing together a bipartisan mix of renowned legal minds and policy experts to hear and argue the case that will decide the health status of millions.  

The moot court event will offer an exclusive look into the highly anticipated U.S. Supreme Court case Department of Health and Human Services v. State of Florida by specifically examining the lawfulness of the Affordable Care Act's minimum coverage requirement. 

Respondent:
Theodore Boutrous, partner at Gibson, Dunn & Crutcher, LLP

Petitioner:
Kathleen M. Sullivan, partner at Quinn Emanuel Urquhart & Sullivan, LLP

Justices :
Vikram Amar, Associate Dean, UC Davis School of Law

Hon. Gray Davis, Former California Governor

Judge Alex Ferrer, Host of Judge Alex and Former Florida Circuit Court Judge

Daniel Philip Kessler, Professor of Law, Stanford Law School, and Senior Fellow, Hoover Institution

Thomas E. Lorentzen, President, Health Approaches, and Former Regional Director, U.S. Department of Health and Human Services

Rachel F. Moran, Dean, UCLA School of Law

Hon. Carlos R. Moreno, Former Associate Justice, California Supreme Court

Thomas A. Saenz, President and General Counsel, MALDEF

Hon. Deanell Reece Tacha, Dean, Pepperdine University, and Former Circuit Judge, 10th Circuit U.S. Court of Appeals

Audio from the event will be streamed live at http://www.calendow.org/ACAMootCourt/.

 

February 16, 2012

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

By Vikram David Amar and Alan E. Brownstein

[Cross-posted from Justia.com]

In this column, we provide an analytic framework for analyzing the recent firestorm involving regulations from the Department of Health and Human Services (HHS) concerning the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services as part of the insurance they obtain through their employment.

The Relevant Background

As anyone who has kept up on current events the last few weeks knows, proposed HHS regulations that were announced in January, and that are designed to implement parts of the Affordable Care Act (ACA) required employers to include contraception services in the health insurance plans they offered their employees.  The primary objection to the regulations involved their application to religious organizations that are opposed to the use and provision of contraceptive services as a matter of faith and doctrine. The regulations did contain an exemption for some religious employers, but it was extremely narrow in its scope and would not apply to religious hospitals, universities, and charities.

Last Friday, in response to the regulations' critics, President Obama offered a compromise solution. Under his new proposal, religiously affiliated employers will not be obligated to provide contraceptive coverage to their employees; instead, their health insurance companies will be required to provide the coverage directly to women at no charge.  The cost of providing insurance coverage for contraceptive services would thus be shifted from faith-based institutions that object to the mandate on religious grounds, to health insurance companies serving the populations at issue.  Proponents of the compromise argue that because the provision of contraceptive services often reduces other policy costs incurred by health care insurers, the cost of the shift to insurance companies would be minimal.

President Obama's proposed compromise was satisfactory to some interest groups, but other ideological voices, including both liberal and conservative politicians, criticized the plan, albeit from opposite perspectives.  The New York Times editorialized that "it was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution." The U.S. Conference of Catholic Bishops, on the other hand, claimed that the proposal "continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions."

The Right Framework:  Focusing on Religious Liberty, Accomplishing Legitimate Government Objectives and Reducing Secular Windfalls

Any thorough analysis of this dispute is complicated by the intricacies of the ACA, the operation of health care insurers, and the rapidly evolving political reactions.  In this column, however, we want to step back and examine the core questions that are presented when government compels religious institutions to provide health care insurance coverage for contraceptive services that the institutions view as antithetical to their beliefs, and locate this conflict within a broader context.

To begin with, we believe there is a serious religious liberty interest at stake in disputes like these. Religious institutions have an understandable desire, one worthy of respect, to use their own resources (public funds and facilities present a separate question) to advance and promulgate their faith-and not to support activities that violate their religious beliefs.  Indeed, there is arguably something particularly intrusive and unsettling about the government's forcing religious institutions to take action to use their own resources in a way that undermines their beliefs.

This affirmative commandeering of religious organizations to further the state's purposes is, for some people, even more intrusive and burdensome than a law that ties religious institutions' hands by forbidding them from engaging in conduct that their faith obliges them to perform.

The burden on religious liberty is thus a critical element in evaluating the unfolding HHS regulations, but it is not the only concern that needs to be taken into account. The public interest underlying the contraceptive access aspects of the ACA must be considered as well. We do not doubt the importance of contraceptive access to the public health of our society, nor do we doubt the value of the mandated insurance coverage to individual women. If religiously affiliated organizations such as hospitals, universities, and charities are exempt from the regulations' requirements, a large class of women might be denied health benefits that other women receive, and that the state and the medical community strongly believe should be available to them. That is no small cost.

Finally, there is one other factor to consider. Some, though not all, religious exemptions provide benefits of secular material value to exempted institutions, in addition to protecting the institutions' religious liberty. Typically, these secular benefits are a consequence of relieving religious individuals and institutions of duties and obligations that other similarly situated persons or organizations must obey.

Some easy examples may help to clarify this point. Religious pacifists who are exempt from military conscription as conscientious objectors are relieved of having to violate their religious commitments, but they are also relieved of a physically dangerous duty that other individuals must fulfill. When an employee's observance of the Sabbath is accommodated by his employer, the employee also gets to spend prized weekend time off with his family, while his co-workers may have to work more weekends to substitute for his absence.  When religious institutions are exempt from regulations that require the expenditure of funds-for example, regulations requiring that facilities must be accessible to the disabled-the exempted institutions save money that can be used for other purposes. Thus, persons can certainly support exemptions for religious individuals and institutions in the name of religious liberty while questioning the fairness of allowing the beneficiaries of these accommodations to retain the accompanying secular benefits as well.

In sum, we suggest that religious accommodations in disputes like this one should try to accomplish three goals. First, they should protect religious liberty to the extent that it is feasible to do so. Second, they should mitigate or spread the costs of protecting religious liberty so that they do not fall disproportionately and heavily on any individual or group. Third, they should promote basic fairness and avoid the privileging of religion by limiting the secular benefits religious individuals and institutions obtain as a result of any exemption they receive.

Resolving the Exemption Issue with Win/Win Approaches

Let us now consider how this analysis might apply to the HHS regulations mandating contraceptive services, with which our column opened. To begin with, we would exempt religious organizations from any duty to comply with the mandate when the organizations are operating programs with their own funds. If a religious organization operates a government-funded program, however, the mandate should remain in force.

The distinction we make here, between privately and publicly funded programs, is grounded in our basic unease about government's commandeering the resources of religious institutions to serve its own goals. Religious organizations have a religious liberty right to challenge government regulations that require them to use their own resources in violation of their religious commitments in order to further the state's secular objectives. Religious organizations do not, however, have a religious liberty right to use the government's resources in order to further the organizations' religious commitments when  doing so would undermines the state's public policy goals.

Religious Liberty as a Public Political Good; The Duty of the Government to Spread the Cost of Religious Exemptions

Next, we think the government should take appropriate steps to spread the cost of the religious accommodation to the general public, rather than having it fall much more heavily on the members of a smaller class.  The most obvious and natural way to accomplish this goal would be for the federal government to use its own resources to provide health insurance coverage for contraceptive services for those women who are unable to receive the benefits of the HHS mandate because they happen to be employed by institutions who invoke the religious exemption discussed above.

It may be that President Obama's proposal to shift the cost of contraceptive services to health care insurers also achieves this cost-spreading goal to some extent, although we do note that it does so by imposing on the healthcare providers directly, and in a way that seems historically unusual.  (We are not aware of many examples in which the government directs a commercial enterprise to offer a service for free.)

So while we must think more about the compromise that President Obama offered before deciding whether it is acceptable, our key point here is that the government's obligations do not end when it exempts religious institutions from regulations that unacceptably interfere with or burden their religious liberty. The government also owes a duty to those people who suffer burdens or lose benefits as a consequence of the state's protecting religious liberty-and that duty requires the government to mitigate and spread these costs as much as possible.

The justification for spreading the cost of religious accommodations is straightforward. Fundamental rights such as religious liberty are public political goods that define the very nature of our community. We recognize, of course, that, in any given case, freedom of religion may be of much more value to certain individuals or groups than others. But the utility of these rights to particular individuals in specific situations should not lead us to ignore the intrinsic public value of living in a free society.

When the government incurs costs to acquire or protect public goods, it is appropriate for the community as a whole to share in the costs of its doing so-rather than leaving the cost to fall on a narrow class whose interests are sacrificed to the greater good.  (That is the reason why the Constitution prohibits "takings" for public use without "just compensation.")

The government expenditures and cost-spreading we propose to make rights meaningful are not unique to the public good of religious liberty-they often are present in the free speech context as well.  Governments spend substantial sums, for example, to provide adequate police forces to maintain order during large political demonstrations, or to protect small groups of unpopular speakers. In accepting these expenses as the price to be paid for living in a society committed to freedom of speech, we recognize implicitly that these costs may be allocated appropriately to the general, taxpaying public. We suggest that a similar analysis applies to religious liberty.

Adjusting the Equities By Requiring Alternative Service

Finally, we reach the third factor that is often overlooked in religious accommodation disputes. As a condition for receiving an exemption from the HHS contraceptive services mandate, religious organizations should agree to dedicate whatever funds they save from not having to provide the otherwise-required contraception coverage to some other public service, identified by the government, that is consistent with their beliefs. Remember, the justification behind the exemption for faith-based organizations is religious liberty. It does not extend to the cost savings that result from being freed from the burden of complying with legitimate regulations relating to public health goals, or any other permissible governmental objective.

Here again, our proposal is grounded on uncontroversial precedent.  Our society has long accepted the legitimacy of requiring conscientious objectors, exempt from military conscription, to perform some kind of alternative service that is consistent with the dictates of their faith. This obligation is not a penalty imposed on religious pacifists. It is an equitable rule that recognizes that, in the name of religious liberty, the conscientious objector has been relieved of a serious material burden that has been imposed on a broad class of individuals. Accordingly, it is fair and just to require him accept some other, comparable, civic obligation that does not require the violation of his religious beliefs.

We see no material difference between alternative service for those who are exempt from military service for religious reasons and alternative expenditures for public services by religious institutions that are exempt from costly regulatory mandates on religious liberty grounds.

We recognize that calculating and reallocating secular cost savings can be challenging and imprecise.  But such imprecision should not prevent us from doing the best we can under the circumstances. Alternative service for conscientious objectors does not, and cannot, replicate the risks and burdens of military service.  In these cases, perfect calibration in redirecting secular windfalls may be less important than achieving sufficient equities to demonstrate our recognition of the problem and our commitment to mitigating it.

The Benefits of a Principled Framework

The framework we describe in this article certainly won't resolve all disputes about religious accommodations that will arise now and in the future. Those debates are as old as our country. This framework does, however, lead us to think about these issues in a principled manner, rather than relying on compromises that depend primarily on the political power of competing adversaries.

Certainly, our proposed framework protects religious liberty far more than the original HHS regulations did, and it also provides health insurance coverage for far more women than would receive benefits if all religious organizations burdened by these regulations were simply exempted from the mandate. President Obama's compromise proposal seems, in some ways, to be a step in the right direction, although important questions as to how it will be implemented remain to be resolved.  The compromise resonates with two of the principles we advocate: (1) it reduces state interference with the ability of religious institutions to follow the dictates of their faith, and (2) it mitigates and spreads the costs of the accommodation so that they do not fall exclusively on women who are employed by exempt religious institutions.  Granted, its placement of the burden on insurance companies does raise issues of its own.  But it may not be a bad beginning, even if it isn't quite yet a complete solution to the problem.

November 3, 2010

UC Davis School of Law and Fenwick & West to Host Symposium on Personalized Medicine on Friday

November 5, 2010
9:00 A.M. - 6:00 P.M.

UC Davis School of Law

Ongoing improvements in DNA sequencing technology and the increasing availability of bio-banked materials are converging to create advanced personalized medicine diagnostics and treatments that offer the promise of improved outcomes and lower healthcare costs.  Fenwick & West and UC Davis School of Law will host a panel of distinguished experts to discuss an array of issues and challenges in the emerging field of personalized medicine.  Symposium topics will focus on issues and challenges arising from recent developments that call into question the scope of patent protection available to support investment in this nascent industry as well as issues regarding ownership and licensing of related technology and information; the potential impact of direct to health care consumers offers of genetic tests and other personalized medicine services; and the entrepreneurial environment for personalized medicine in the evolving health care economy.  Professionals, entrepreneurs, executives and students in law, medicine, management and other related fields are invited to attend this important symposium to garner knowledge that will synthesize current developments and anticipate future directions along the road to translating the promise of personalized medicine into an emerging, new reality.

MCLE credits available.

 

Program Details

The order and timing of the panels is subject to change.

8:45 A.M. - 9:30 A.M.
Continental Breakfast & Registration

UC Davis School of Law, King Hall
Main Lobby

9:30 A.M. - 9:45 A.M.
Welcome

Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis

Speakers:

  • Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, UC Davis School of Law
  • David Bell, Partner, Fenwick & West


9:45 A.M. - 10:15 A.M.
Introduction to Personalized Medicine

Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis

Speaker: George Schreiner, MD, PhD, Chairman of Board, PROOF Center of Excellence, in affiliation with University of British Columbia, CEO, Cardero Therapeutics

10:30 A.M. - 11:45 A.M.
Panel I: From the Lab to the Patient: Intellectual Property in Personalized Medicine

1 MCLE credit
Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis

Moderator: Peter Lee, Professor of Law, UC Davis School of Law
Panelists:

  • Barbara Brenner, Executive Director, Breast Cancer Action
  • Mark Capone, President, Myriad Genetic Laboratories
  • Clinton Neagley, Associate Director, UC Davis InnovationAccess – Technology Transfer Services
  • Michael Shuster, Partner, Fenwick & West


Noon – 1:30 P.M.
Lunch and Keynote Presentation

UC Davis Conference Center

Speaker: Kathryn Lowell, California Deputy Secretary for Life Sciences and Health Systems
Luncheon is $25 per person, $15 per student
Limited Seating
Please RSVP by Friday, October 29

1:45 P.M. - 3:00 P.M.
Panel II: Issues for Entrepreneurs in the Nascent Industry
1 MCLE credit
Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis

Moderator: Stephen Graham, Partner, Fenwick & West

Panelists:


3:15 P.M. – 4:45 P.M.
Panel III:  Consumers in the New Personalized Medicine Model
1 MCLE credit
Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis  

Moderator:  Lisa Ikemoto, Professor at Law, UC Davis School of Law

Panelists:

  • Sandra Soo-Jin Lee, Ph.D., Center for Biomedical Ethics, Stanford Medical School
  • Ed MacBean, Product Management Vice President, Pathway Genomics
  • Beatrice O’Keefe, Laboratory Field Services, Department of Public Health
  • Michael Wilkes, Vice Dean of the School of Medicine and Director of Global Health, UC Davis Health Systems


4:45 P.M. - 4:50 P.M.
Closing Remarks
Kalmanovitz Appellate Courtroom (room 1001), King Hall, UC Davis

Reception Immediately Following

February 14, 2010

Small-town "justice" run amok?

I have been intrigued by the attention national media have given this week to a criminal trial in West Texas.  Ann Mitchell, an administrative nurse at the community hospital in Winkler County, went on trial in state court charged with "misuse of official information," a third-degree felony that carried a possible fine of $10,000 and up to 10 years in prison.  The charges stemmed from an anonymous letter that Mitchell and another administrative nurse wrote to the Texas Medical Board.  In it, they called the Board's attention to irregularities in how Dr. Rolando G. Arafiles was practicing medicine at the hospital where they worked.  The nature of the irregularities and report are described in a New York Times story as "a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services."  The nurses believed they were under a professional obligation to make the report, but following it, the Winkler County Sheriff's Office seized their work computers and arrested them.  The local prosecutor subsequently charged the nurses with the third-degree felony, and the Winkler County Hospital fired them.  Those consequences apparently unfolded after the Medical Board notified Dr. Arafiles of the anonymous complaint and he told his "friend, the Winkler County sheriff, that he was being harassed. The sheriff, an admiring patient who credits the doctor with saving him after a heart attack, obtained a search warrant to seize the two nurses’ work computers and found the letter."  The prosecutor says that Mrs. Mitchell has a history of making "inflammatory" statements about Dr. Arafiles and that she did not make the report in good faith.  To establish the felony charged, however, the State must prove that she disseminated confidential information for a "nongovernmental purpose" with intent to harm Dr. Arafiles. 

The prosecutor dropped charges against Mrs. Mitchell's colleague just before the case went to trial.  A jury in neighboring Andrews County acquitted Mrs. Mitchell on Thursday.  The jury voted unanimously on the first ballot to acquit the nurse and questioned why she had ever been arrested.  Read more here.

New York Times reporter Kevin Sack observed that "seeming conflicts of interest are as abundant as the cattle grazing among the pump jacks and mesquite" in the small town of Kermit, population 5,714, where these events unfolded.  Indeed, subsequent reports reveal an additional conflict:  according to filings in a federal case the nurses have brought against Arafiles, the Sheriff, and Winkler County, the Sheriff is a partner in Dr. Arafiles' herbal supplement business, a business that Arafiles promoted in emails to patients.   

Despite the obscure locale of these events--or perhaps because of it--the New York Times published three items about them last week.  The paper reported last week-end on the impending trial of Mrs. Mitchell, and later in the week it reported the not-guilty verdict.  In between, it published an editorial commenting on apparent flaws in the prosecution and the chilling effect it might have on whistle-blowing.  

The first NYT story about these events inspired this blog post on my Legal Ruralism blog, and I was especially intrigued that the story attracted as much attention as it did.  On the day it appeared, it rose as high as number 2 on the "most emailed" list at nytimes.com, and it stayed on the top-10 list for nearly two days.  I attributed the high degree of interest to the broad headline, "Nurse to Stand Trial for Reporting Doctor."  Many doctors and nurses all over country were presumably taking note of this unusual event and sharing the news.  But the New York Times reporting and editorial suggest several ways in which this story is distinctly "rural" or "small-town." In addition to referring to the apparent conflicts of interest, Sack's reporting refers to the "stained reputations" of the nurses and how "heads turn when they walked into local lunch spots."  He also reports the practical difficulties that rural hospitals like that in Winkler County have in attracting and retaining physicians; indeed, Dr. Arafiles came to the hospital in 2008 with a restriction already on his medical license.  The trial was moved to neighboring Andrews County because it "polarized the community."  Finally, the New York Times editorial suggests that "small-town 'justice'" was the problem.  

So, is there really something distinctly "rural" about this story, or could it happen anywhere? Clearly, it could happen anywhere, though I tend to agree with the Times' suggestion that the rural context facilitated this unusual prosecution. 

Rural sociologists and other scholars who write about rural-urban difference have discussed a number of factors apparently at play in these West Texas events.  These include lack of anonymity and conflicts of interest that sometimes result from it; rural disadvantage in terms of access to services such as medical care; a lack of checks and balances in rural local government and a related failure of local government to protect civil rights.  In this case, heightened reputational injury associated with lack of anonymity and the inability of the dismissed nurses to find replacement jobs because of the limited labor market presumably increased the damages they suffered.  This little case out of Kermit, Texas thus illustrates how various characteristics of rural places can be legally relevant in a variety of ways.  Some of the challenges associated with rural lack of anonymity were apparently mitigated by the change of venue.  Whether law and legal actors adequately respond to other challenges associated with rural places--such as those that seem to have aggravated the nurses' damages--may be evident when their case against the various officials is tried or settled.

Cross-posted to Legal Ruralism Blog.