The U.S. Supreme Court expanded exemptions to a federal mandate that requires employer health plans to cover birth control. The mandate already exempts churches and lets other non-profits file for a “religious accommodation.” The Hobby Lobby decision lets for-profit employers file, too.
The Wheaton College ruling lets Wheaton, a Christian non-profit, skip filing the accommodation form—EBSA Form 700—pending a hearing on whether the form violates the Religious Freedom Restoration Act (RFRA). The EBSA form goes to Wheaton’s health plan administrator, a separate entity that must cover the contraceptives Wheaton won’t.
In this post, I critique two analogies used in the Wheaton legal debate. The first is an execution warrant analogy from Wheaton’s filing with the Court. The second is a conscientious objector analogy from Justice Sonia Sotomayor’s dissent.
Wheaton College’s two paths to religious accommodation.
Wheaton objects that the accommodation form “makes it complicit in a grave moral evil.” The mandate includes emergency contraceptives that may block implantation of a fertilized egg, which the college believes would violate the sanctity of human life. Signing the form, Wheaton says, “authorizes and obligates” another party to fund an immoral act. By order of the Court, a letter of religious opposition Wheaton sent to HHS temporarily exempts it from the mandate.
Wheaton’s lawyers say the accommodation form is like an execution warrant. Justice Sotomayor compares the college to a conscientious objector. Both analogies help illuminate the debate. Neither resolves it.
The Execution Warrant Analogy
Wheaton claims EBSA Form 700 doesn’t accommodate the college’s religious convictions. It violates them by making Wheaton an accomplice in sin. Wheaton’s legal counsel writes:
[A] religious opponent of the death penalty might object to signing an execution warrant [given] that someone else would be legally authorized by the warrant to do what the believer understands to be wrong.
Wheaton is a religious opponent of emergency contraceptives that may cause the death of a fertilized egg. Signing the accommodation form, Wheaton contends, would authorize someone else to pay for the potential, willful destruction of innocent human life.
Set aside the objection that federal law, not Wheaton, “triggers” the provision of coverage. (I’ll revisit this objection later.) Also, assume that killing zygotes and executing persons are both immoral acts.
Now, compare signing the form with signing the warrant.
| Accommodation Form | Execution Warrant |
|---|---|
| Birth control opponent does not cover emergency contraceptives. | Death penalty opponent does not kill the condemned. |
| Provider must offer the coverage. | Executioner must kill the condemned. |
| Some beneficiary chooses to use the coverage. (All can choose otherwise.) | The condemned is killed immorally. |
| The covered pill or device works by blocking implantation. (Emergency contraceptives can work otherwise.) | |
| Some zygote is killed immorally. |
The form plays a more removed role in a less certain harm. Compared to issuing the warrant, submitting the form has a weak or “attenuated” connection to an immoral act.
The term “attenuated” is used in the Hobby Lobby decision. HHS and the four dissenting justices argued that Hobby Lobby, even as coverage provider, played “too attenuated” a role in a zygote’s death for the contraceptive mandate to “substantially burden” the owners’ religious freedom under RFRA.
Wheaton, as form signer, plays an even weaker role in a zygote’s death. Does submitting the form still substantially burden its exercise of religion? Maybe. But comparing the form to an execution warrant overstates any burden the college actually bears.
The Conscientious Objector Analogy
Justice Sotomayor (plus Justices Ginsburg and Kagan) dissented from the Wheaton College ruling. She argues Wheaton’s “complicity theory” (i.e., their accomplice in sin objection) regarding the accommodation form “cannot be legally sound.”
To make her point, Sotomayor borrows a conscientious objector analogy from a lower court ruling. (See pp.11-12 of her dissent.)
| Wheaton College | Conscientious objector |
|---|---|
| Evangelicals against emergency contraceptives. | Quaker against war. |
| Exempted from mandate but a substitute provider must offer coverage. | Exempted from draft but a substitute combatant must enter war. |
| Opposes anyone covering emergency contraceptives. | Opposes anyone fighting in war. |
| Demands exemption from accommodation form. | Demands exemption for substitute combatant. |
The Quaker believes that forcing him to force others to fight is immoral. If the Quaker’s conscientious objection would send someone else to war, then the government must exempt his substitute or else violate the Quaker’s religious freedom. But this religious accommodation seems unreasonable—even absurd.
Sotomayor appears to think that Wheaton’s complicity theory stands or falls with the Quaker’s complicity theory. If it does, then the absurd consequences of the the latter reach back to undermine the former. Here’s the argument Sotomayor may have in mind.
- If Wheaton’s complicity theory is legally sound, then the Quaker’s complicity theory is legally sound.
- The Quaker’s complicity theory has absurd legal consequences (namely, exemption for the Quaker and the substitute combatant).
- Therefore, Wheaton’s complicity theory is not legally sound.
So what legally binds another provider to take Wheaton’s place? Sotomayor answers:
[T]he obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations.
In her view, the execution warrant analogy fails. The warrant orders an executioner (namely, a government agency) to act. The Justice claims that the accommodation form doesn’t order Wheaton’s health plan administrator to act. The form exempts Wheaton from the contraceptive mandate, and the mandate orders the other party to act.
If Sotomayor is right, Wheaton says the accommodation form is meaningless. Yet HHS suggests it’s not. For instance, without the form HHS says Wheaton’s students and employees can’t benefit from the contraceptive mandate. Wheaton blocks the law’s effect (including any killing of zygotes) by refusing to file.
Wheaton, not its plan administrator, takes the blame for this obstruction and faces hefty fines. When Wheaton refuses to send the signed form to the substitute provider, the college seems to prevent a transfer of legal obligation. Maybe this transfer-by-signature adds to Wheaton’s worry that Sotomayor is wrong.
These two analogies grapple with two key questions in the contraceptive mandate debate.
The first question asks: When does one person’s seemingly innocent act make her responsible for another’s immoral conduct? Sotomayor suggests that signing EBSA Form 700 is no worse than telling the draft office to meet its quota of combatants without you. Wheaton suggests that signing the form is as bad as signing a death warrant (if you oppose the death penalty). In the Hobby Lobby ruling, The Court claims to lack the authority to answer this “question of religion and moral philosophy.”
The second question is one of legal philosophy, no doubt the Court’s domain. When does one person’s exemption create another’s obligation? At least three Justices—Sotomayor, Ginsburg, and Kagan—seem to hold that exemptions don’t create obligations. Mandates do, whether for conscripts or contraceptives. We await more from their fellow Justices.
I don’t understand Wheaton’s stance at all. As I understand the exemption, if they sign the form then their provider cannot issue contraceptives. So how would signing make them complicit in anything? If they don’t sign the exemption then they are authorizing their provider to issue contraceptives. So not signing would make them complicit. The only way to disallow contraceptives without the federal exemption would be to add a clause in the provider’s contract. But that still requires a signature. Nothing about this story makes sense to me.
Do they check the plumber’s wallet for condoms before they hire him to fix the toilet?
I think you’ve got the details of the exemption a little turned around, John. When Wheaton signs the accommodation form, they no longer bear financial responsibility for emergency contraceptive coverage. The responsibility will instead fall on the company (in this case, what’s known as a third-party administrator or ‘TPA’) that handles health insurance claims made by the people (students, employees) on Wheaton’s health plan. Wheaton worries that signing the form “authorizes and obligates” that other company to pay for emergency contraceptives, in the same way signing an execution warrant authorizes and obligates an executioner to carry out a death sentence.
Here’s how the contraceptive mandate works (my apologies if I was unclear about this). If an organization or corporation offers an employee (or student) health plan, the plan must offer no-cost contraceptive coverage. Churches and houses of worship are automatically exempt. Religious non-profits can file for exemption using EBSA Form 700, but the form must go to the company that handles their health insurance, who then must provide the mandated coverage. The recent Hobby Lobby ruling now allows for-profits to file for exemption, too.
Certainly not the first time I’ve gotten things turned around. But I still don’t see the cause for Wheaton’s concern. All the automatic exemption would do is save them some paperwork. If they don’t have to sign the accommodation form their TPA would still be liable for the cost of the pills. So Wheaton would still be complicit by association. The only way for them to avoid complicity would be for them to find a TPA that doesn’t fund contraceptives. I don’t know if there is such a thing.
Wheaton’s action, to me, amounts to nothing more than them sticking their fingers in their ears and “nanana”ing to hide from reality.