A Response on the Hobby Lobby Posts, from Matt Bowman at the Alliance Defending Freedom

I thought I’d pass this along, since many of our readers are interested in the case. Naturally, I’m also open to posting something from one of the lawyers or academics on the opposite side of the issue.

First, I want to thank Prof. Volokh for his fine series of posts on the cases involving the mandate of early abortion causing birth control in health plans. As one of the attorneys for multiple clients challenging the mandate, including the Hahn family of Conestoga Wood Specialties whose case is being reviewed at the U.S. Supreme Court, I was pleased to read Prof. Volokh’s clear and wide-ranging analysis. While I largely agree with his conclusions, there were bound to be some differences in such a broad discussion. Prof. Volokh has graciously allowed me the opportunity to respond to two of those points of departure.

In his post, RFRA Strict Scrutiny: The Interest in Protecting Health, Prof. Volokh wrote:

It seems to me that a compelling interest in protecting health is indeed implicated here. Preventing unwanted pregnancy helps prevent a wide variety of possible health problems. Protecting physical health seems likely to be seen as a compelling interest. And making these contraceptives available to people with no out-of-pocket cost to them will make it more likely that they will be used, and the health problems will be avoided. Moreover, particular contraceptives are particularly effective in dealing with particular conditions. Plan B is particularly effective at preventing pregnancy post-intercourse. IUDs are particularly effective for women who have bad reactions to oral contraceptives. So I expect that the Court will indeed say that the government’s attempt to make these particular contraceptives available to employees of Hobby Lobby and similar employers furthers a compelling interest in protecting health.

I think this assumes a compelling interest far too easily, and passes over several key points asserted in the plaintiffsbriefing. In Brown v. Entertainment Merchants Association, the Supreme Court said that to show a compelling interest, the government must offer evidence proving that compelling harm will be caused unless the government imposes its mandate. In this case, the government defines its interests as an increase in health (or equality) by a decrease in unintended pregnancies, which allegedly cause anti-health and anti-equality effects.

The government has failed its evidentiary burden on multiple levels. It has offered no evidence that an employer coverage mandate actually increases people’s use of contraception. Beneficiaries of these mandates, or many of them, might be buying contraception already, meaning adding coverage doesn’t produce any net effects. The government’s evidence admits up front that most women experiencing unintended pregnancy are low income and likely don’t have employer health insurance. Therefore the Mandate on employers such as my clients is not aimed at the target audience, while much of that audience is already provided the mandated items by Medicaid and Medicaid expansion. And these cases aren’t talking about striking down the Mandate entirely, but merely lifting it from religiously objecting family businesses.

Each of these evidentiary misfires makes the Mandate impact a smaller and smaller group of women receiving the hypothetical compelling effects on health and equality. But that’s just the beginning. Even among those women, no evidence was offered that a coverage mandate actually reduces unintended pregnancy. In general, the reduction in pregnancy by contraception is hotly contested, because increasing its availability can also increase behavior that causes pregnancy. But the government’s evidentiary problem is more specific. It needs to show that an employer coverage mandate actually makes a difference in this reduction. Yet 28 states have already enacted similar mandates, and not one study shows that any of those mandates actually reduced unintended pregnancy.

This leads to a third evidentiary gap. Underneath it all, the government’s evidence admits that researchers don’t know what “unintended” pregnancy is. How is that measured? What if a woman changes her intent during the pregnancy? This means the government can’t specify which pregnancies are causing the alleged problems, or which are affected by mandates to cure those problems. Note that the government doesn’t claim it has a compelling health interest in reducing intended pregnancies. That would be totalitarian. The government needs to show a reduction in unintended pregnancies caused by coverage mandates, yet it doesn’t know which or how many pregnancies are unintended.

The government’s evidentiary sources admit even further agnosticism: there’s simply no way to know whether negative health consequences are caused by unintended pregnancies. Instead, if any connection exists between unintended pregnancy and bad health consequences, it is based on mere correlation, not causation. Think about it—what physical consequences could possibly be caused by one’s mens rea regarding the pregnancy? Women suffer pregnancy complications from other negative health qualities—like failing to get prenatal care, or smoking and drinking—not from the pregnancy’s “intent.” The government’s evidence admits that most women with health problems “associated with” unintended pregnancy are, again, low income and without health insurance: not the target population of an employer mandate.

Given these cascading evidentiary flaws, the Supreme Court should reject the government’s interest the same way it rejected evidence of a compelling interest in Brown. In that case, where violent video games were alleged to cause youth violence, “nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Brown’s reasoning further suggests that generic benefits that come from birth control can’t be harnessed to say there’s a compelling interest, when the actual mandate in the case yields only a mere fraction of a fraction of those benefits. Brown declares that “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” A marginal remainder is all the government has left after it travels this great distance down a poorly supported causal chain. The coverage mandate will affect only a small fraction of women who “need” it, and who will change their behavior from it, and who will therefore avoid unintended pregnancy, and who will necessarily avoid a bad health event, and who actually work for a company with religious objections.

The Mandate is a poorly supported, trickle-down attempt to serve a government interest. It is Obamacare’s version of “voodoo economics.” A “compelling” interest cannot be so far abstracted from its goal, yielding results that are not only indirect but uncertain and fractional. The government might be able to create such a Mandate in general. But it cannot use one to violate religious liberty or other fundamental freedoms, which are themselves “compelling interests” in American law.

There is a second, related point to which I would like to respond. In Prof. Volokh’s next post, Strict Scrutiny: The Interest in Sex Equality, he proposes another reason the government might have a compelling interest:

When the law declares that some action is an injury to others — even something that, as with paying low wages or discriminating in employment, is a newly defined right rather than a traditional common-law right — there arises a compelling interest for RFRA purposes in preventing such injuries.

Considered carefully, this rationale is circular. The government is deemed as having a compelling interest because the government has commanded something. This nullifies the compelling interest requirement. If all the government has to do is require something benefitting third parties in order for it to trigger a compelling interest, then all religious freedom challenges (and challenges in other areas of constitutional law) fail the compelling interest prong of strict scrutiny, because they all challenge a government command, and that command is nearly always defended based on its alleged need to protect third parties.

In a strange setup to his point, Prof. Volokh proposes a hypothetical where a RFRA claimant tries to win a “right” to trespass on someone else’s land, but loses because common law protects against trespass. From this scenario Prof. Volokh derives the idea that government has a compelling interest in protecting “private rights.” But ironically, he extends this idea to exactly the opposite situation, where the government is commandeering private property instead of protecting it. The Mandate tries to allege a novel right to rob some citizens of their private property and activities in order to force them to buy early abortion pills and related items for other citizens. Under this Mandate, RFRA’s protection of private rights is redefined to be an attack on private rights. Such a counter-intuitive result is inevitable when government commands are declared to be their own justification. A coercive government will always define its coercion as constituting “true” freedom. In America, it is freedom, not coercion, that is the baseline against which we measure compelling interests. Freedom isn’t something the government gives us by graciously deciding not to coerce us, so that government coercion is self-justified.

Prof. Volokh goes on to suggest that some government commands might not be “private rights” but he concludes with a sense that most of them are. After all, if “the compelled subsidization of a woman’s procreative practices” from one citizen to another (Gilardi) cannot be clearly seen as a restriction of private rights, instead of the creation of private rights, then there is little hope that any government requirement will ever fall outside Prof. Volokh’s category receiving automatic compelling interest status. The government will be allowed to satisfy the compelling interest test simply by its own fiat.

The basic error I see in Prof. Volokh’s proposal is to think that there is a category of government requirements that is immune to the compelling interest test. His inferences and inklings from case law establish no such category. Instead, all government requirements that are subject to RFRA’s compelling interest test must be assessed individually for the quality of their interests, the evidence supporting them, and the necessity of denying an exemption. The fact that some interests have passed the test, like certain civil rights or tax laws with better support than this Mandate, doesn’t mean that this Mandate also succeeds. Government interests do not automatically receive “compelling” status simply because they compel.

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