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I read Kennedy's concurrence, and the opinion is somewhat strange--but perhaps in a good way. Basically, assuming that closely held corporations have religious interests (just assume that for purposes here) and assuming that the regulations substantially burden that interest (again, just assume) and assuming that the federal government has a compelling state interest to provide cost-free contraceptive coverage (which all 9 Justices seem to accept), then the legal question for the Court to determine becomes whether the regulations implementing that interest was narrowly tailored to further the interest. I will argue that Kennedy’s view of what would qualify as a narrowly tailored alternative should ultimately protect women’s access to cost-free contraceptive coverage. Meet me below the orange squiggly for my analysis.

Although the dissent argues against the majority opinion on other issues, the dissent eventually makes its argument regarding whether the federal government has a more narrowly tailored alternative to promote its interest. The dissent determined that the regulations were narrowly tailored because the federal government had no other means available to provide cost-free coverage to employees through their employer-based insurance coverage.

The majority opinion acknowledges that the opinion of the Court is dependent on the conclusion that a more narrowly tailored alternative was available. The Court, however, is a little vague on what would be the more narrowly tailored alterative. Principally, the Court suggests that Congress could provide direct contraceptive coverage to women separate from their employer coverage. The dissent accurately (in my view) points out that the requirement of a narrowly tailored alternative cannot be a requirement to develop a separate independent program at separate cost to the government. The majority opinion does not really offer a reasonable answer to this objection (other than to merely assert that the opinion should be viewed as having narrow applicability), but Kennedy does provide an answer to this objection (by intentionally misreading the majority opinion).

Kennedy’s answer to the dissent in his concurrence is that a program already exists for non-profit entities in which they can certify their religious objection, and the insurance company will provide cost-free contraceptive coverage to the employees. Kennedy seems to argue that because an alternative already exists that allows others (i.e., non-profit entities) to protect their religious objections, this alternative must be extended to closely held corporations to provide a narrowly tailored alternative that promotes the governmental interest without burdening the religious adherent. If this alternative had never been developed in the regulations for non-profit entities, perhaps Kennedy rules the other way.

What makes Kennedy’s opinion somewhat strange is that he writes as if the dissent simply failed to read the majority opinion closely. He acts as though the majority opinion relied on the extension of this already existing program for non-profit entities to closely held corporations. But the majority opinion does not rely on this reasoning—Kennedy is misrepresenting the text of the majority opinion (I believe intentionally). In fact, the reference in the majority opinion to this reasoning regarding the existing program for non-profit entities is almost a throw-away analysis in the majority opinion. And the majority opinion immediately follows up this discussion with a statement that such an alternative might not even be a permissible alternative because it might burden a religious interest (the Court does not decide that issue in this opinion). So the majority opinion cannot rely on this alternative because the alternative must be permissible for the alternative to qualify as an alternative at all. If the Court leaves this question open, then the answer to this question must not be required for the resolution of the case. Thus, contrary to Kennedy’s characterization of the majority opinion, the majority opinion must be based principally on the “narrowly tailored” alternative put forth that the federal government could pay for and directly provide the contraceptive coverage (which the dissent accurately attacks).

Kennedy’s concurrence basically ignores the alternative of having the government directly provide the coverage. Kennedy states that the Court does not impose a burden on government to create a new program because an existing program already exists. But, as noted above, the majority opinion refused to rule whether this program itself is permissible. I believe that the majority opinion might have added the reference to the existing program for non-profit entities only in order to get Kennedy’s vote. Kennedy pretends that the central argument of the majority opinion on this issue is focused on this alternative. It is not. So Kennedy may be signaling that he voted as his did only because given this particular set of circumstances, the government already had a program for non-profit entities that easily could be extended to closely held corporations. Kennedy’s concurrence does not really hold up if this alternative will be struck down as itself violating religious interests.

If Kennedy really believes the ruling relies on the existence of a program that has already been developed that could be extended to cover closely held corporations (as opposed to requiring the creation of a new program directly administered by the government), then Hobby Lobby won a pyrrhic victory. HHS presumably will amend the regulations to extend the certification process already covering non-profits entities to add closely held corporations. If Hobby Lobby wants to avoid certain contraceptive coverage for its employees, Hobby Lobby will be required to certify its objections, and the insurance company will provide separate coverage to the employees at no cost. From a policy point of view, I think most liberals would find this compromise acceptable.

The 4 most conservative Justices (Alito, Roberts, Scalia and Thomas) seem to be ready to require the federal government to provide the coverage itself separate from the employer in order for the method to be narrowly tailored to further the governmental interest (although the majority opinion does not directly rule on this issue). A case raising that legal question will likely be decided in the next term when religious entities challenge the certification process as applied to them. These non-profit religious organizations seem to argue that the mere act of certification forces them to participate in the process of obtaining contraceptive coverage and therefore interferes with their religious interests. If that point of view prevails, then contraceptive rights are in danger because Congress (at least this Congress) is unlikely to pass a law separately providing contraceptive coverage on a cost-free basis to all women. But if I am right about Kennedy's position and if my interpretation of his position prevails in the eventual case next term (on a presumed 5-4 vote with Kennedy voting with the 4 liberal Justices), then the ability of women to receive cost-free contraceptive coverage will have been preserved.


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Comment Preferences

  •  I don't think so (6+ / 0-)
    The 4 most conservative Justices (Alito, Roberts, Scalia and Thomas) seem to be ready to require the federal government to provide the coverage itself separate from the employer
    No, I think the 4 most conservative judges know full well that the Republican congress will never vote to provide contraception and will likely pass laws forbidding any government money going to contraception, just as they have done for abortion.

    The entire HOBBY LOBBY decision rests upon the view (wrongly) held by the owners of the company that contraception equals abortion.  And abortion is proscribed by their view of what their religion states.  Since congress has already repeatedly voted to block any funding, even indirect, for abortion, why would one ever expect congress to pass laws stating that they would fund contraception?

    As my father used to say,"We have the best government money can buy."

    by BPARTR on Mon Jun 30, 2014 at 01:13:01 PM PDT

    •  I agree with you (4+ / 0-)
      Recommended by:
      57andFemale, alypsee1, lina, Simian

      I agree that the 4 Justices are being disingenuous. They know that Congress (at least this Congress) would never pass such a law. The point is that the 4 Conservative Justice stated in their opinion that Congress has a more narrowly tailored alternative available--direct provision of the coverage by the federal government--and because such an alternative exists in theory, the government cannot require the employer with religious objections to provide the coverage. The fact that such an alternative would not actually pass Congress is irrelevant (or perhaps why they rely on it--so that the coverage will not be provided at all). So I don't think Congress would pass such coverage. I think 4 S.Ct. Justices are willing to say that because Congress COULD pass such coverage, Congress has a less restrictive alternative available and the "certification" rule is an impermissible restriction on the religious freedom of religious organizations. My diary suggests that Kennedy will side with the 4 liberals on this issue and save coverage through the certification process.

      •  What (0+ / 0-)

        What would you think of his ruling today if he decides the opposite of what you predict in the future?

        •  That he is a scumbag (0+ / 0-)

          But in this case I don't think so (although he probably is a scumbag for other reasons, such as his vote on the original ACA case). He wrote the concurrence for a reason--and the concurrence is pretty bold in almost re-writing the majority's analysis on this issue. But if he sides with the 4 conservatives and strikes down the certification alternative in a later case, then I don't know why he bothered with the concurrence at all.

        •  I am not crazy about the ruling today (2+ / 0-)
          Recommended by:
          cyncynical, alypsee1

          There is an administrative cost to direct pay by insurance companies.  Just like there is an administrative cost to Cobra continuation.

          But there is a very strong inference that PBO should by executive decree fix this by having the insurance company handle this directly.  

          If he does, it will be so much fun to watch Boner turn a brighter shade of orange as he sputters about executive action and suing the President.

          And... this decision should help turn out the vote as KOS points out.

          •  Not a cost here (1+ / 0-)
            Recommended by:

            In this one instance, the insurance companies do not incur an added cost because the reduced pregnancies save as much or more money than the free contraceptives. Other coverage issues, of course, would be different (which is why maybe contraceptives are unique with respect to this remedy).

            •  That's why it is part of the basic health package (1+ / 0-)
              Recommended by:

              But there is cost to insurance companies having to handle things in 2 different ways.  Exception processing has a cost to it.

              Personally, I think they should cover it by charging Hobby Lobby the estimated cost for a plan that doesn't include birth control.  As you point out, it will be more.

              Then provide the birth control to those that want it free.  The extra profit should pay for the exception processing.

          •  COBRA (0+ / 0-)

            Insurance companies are allowed to charge 102% of the actual policy cost when an insured person moves to COBRA continuation.  The extra 2% is to cover administrative costs explicitly.  So, although there is a small administrative cost to COBRA continuation, the consumer pays it directly.

    •  PBO doesn't need congress (1+ / 0-)
      Recommended by:
      Bob Love

      I agree with zoomzzz.

      Here is what Alito says...

      There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

      In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contracep-tives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

      Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

      Take Alito at his word.  Make Hobby Lobby jump through hoops and then provide the coverage anyway.  

      BTW - this cures a couple of lawsuits already filed by the Catholic Church.

      •  Of course (1+ / 0-)
        Recommended by:
        Calamity Jean

        Of course this system could also be challenged in court. Not only that but the precedent of recognizing a corporation's ability to hold religious beliefs is worrying.

      •  You miss the rest of what he says (2+ / 0-)
        Recommended by:
        rollingeyeballs, lina

        Later, in the opinion, in reference to the certification alternative Alito states:

        We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.

        At a minimum, however, it does not impinge on the plaintiffs’
        religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.

        This quote shows that Alito is not certain that the Court will uphold the certification procedure at all. Thus Alito must ultimately rely on the fact that direct government provision of coverage would be available to Congress. The availability of the certification alternative must not be critical to Alito's analysis because it cannot be true that a less restrictive alternative exists if it is not permissible at all. So the quote above means that this analysis is a throw away, and the opinion is based principally on the ability of the government to provide coverage directly.

        Kennedy makes no such qualification, and implies that the majority opinion makes so such qualification. I doubt this omission is an accident. The language he uses suggests that for him, the permissibility of this alternative is critical to the legal analysis (unlike the majority) suggesting a different line-up of votes when that case comes down.

        •  Do you know (0+ / 0-)

          Do you know why Alito included his little throwaway at all if it obviously doesn't serve as a less restrictive alternative in this case because it is still seen as potentially not legal?

          •  Absolutely (0+ / 0-)

            I think he needed to include it to get Kennedy as a 5th vote. I think without it Kennedy would have concurred in result only, and the 4 conservatives wanted a 5 person majority opinion, not a 4 person plurality opinion in judgment only with a 1 person concurrence in judgment.

            Basically, my best guess is that Kennedy insisted on it as a price for his vote. He could not get Alito to eliminate the reference to the other method of being least restrictive (i.e., government directly providing the benefit), thus requiring that he write the concurrence to signal how he thought the majority opinion really should have been written.

            •  The Majority (1+ / 0-)
              Recommended by:

              If the majority thinks that the issue will come up again with Kennedy joining the other side then courting his vote now is really just an attempt to set precedent for the idea of corporations having religious beliefs isn't it?

              Great analysis by the way. Even if the precedent is somewhat disturbing let's hope you're right about the ultimate result for women's access to contraception.

              •  Worry about tomorrow when it comes (0+ / 0-)

                I think that they are simply getting Kennedy on board today with as much as they can, and they will worry about the next ruling when it comes. But yes, I think established a clear precedent for corporate rights in important to these wing nuts.

                Thanks for the compliment on the analysis.

            •  I think it is more than that (0+ / 0-)

              He can't really rule on cases that are not yet before the court.  But between that and Kennedy I think it would be very bad faith to hold out a solution and then reverse on it.  

              If I was a lower court, I would read that way as well.

        •  Despite my general furty, I have popcorn working (1+ / 0-)
          Recommended by:

          for the day we get the opinion in which Alito explains how it is that he can use the certification process specifically as a less intrusive option, and base this opinion on it, and also claim that it, too, is illicit. That oughtta be a doozie.

          •  He would have an answer (0+ / 0-)

            He would simply say that there is still a less restrictive alternative available--the government may provide contraceptive coverage directly paid for and arranged by the government. Hopefully, if Alito writes this rationale, it will be in a dissent and not a majority opinion.

  •  Nice analysis. nt (0+ / 0-)

    You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

    by Simian on Mon Jun 30, 2014 at 08:31:18 PM PDT

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