Memorial Madness

National Review Online, May 26, 2014

Speaking at the American Legion’s 54th annual Washington conference in March, Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, echoed Justice Kennedy, saying, “Crosses are not just a symbol of Christianity, but they are a widely known symbol of death and sacrifice.”

“Not every situation is the same,” he observed. “And our effort is to urge the courts to consider carefully, and weigh always, what is the religious liberty interest, what is [its] sincerity and history, against what is the government’s compelling interest in overriding that.”

NRO: One HHS Mandate Case Dismissed, Don’t Read Too Much Into It


One HHS Mandate Case Dismissed, Don’t Read Too Much Into It

By: Kyle Duncan

Today’s decision by a federal district court in Nebraska to dismiss one of the many pending lawsuits against the HHS abortion-drug, contraception and sterilization mandate is unfortunate (and in one respect, seriously mistaken). But the decision turns on technicalities and doesn’t decide the merits of the dispute. Bear this context in mind if you should hear anyone trumpeting this decision as some sort of “victory” for the federal government on the religious-liberty questions at the heart of the HHS mandate litigation. It’s nothing of the sort.

The lawsuit was brought by Nebraska and seven other states, as well as three Catholic non-profit organizations (a high school, a charity, and a mutual society), and two individuals. The federal court (senior judge Warren Urbom, a 1970 Nixon appointee) dismissed the lawsuit without prejudice, finding that none of the plaintiffs had “standing” — which means that the court thought that the plaintiffs hadn’t properly claimed any real “injury” from the mandate in their complaint.

As for the non-profits and the individuals, the court relied on a true technicality: It found they hadn’t given specific-enough reasons for why they weren’t “grandfathered.” “Grandfathering” is the idea that you can keep the health plan you had on March 23, 2010 — and so avoid the HHS mandate — provided that you keep it the way it existed on that date in perpetuity. The court simply reasoned that the plaintiffs hadn’t provided enough detail on why their plans weren’t “grandfathered” (one of the plaintiffs, in fact, had admitted their plan was grandfathered). This is a technicality because, presumably, the plaintiffs could simply amend their complaints to provide the necessary details on “grandfathering” the next time around. But, in any event, the decision has nothing to do with the main question of why the mandate violates the Constitution and federal religious-liberty law. It is merely a decision that these particular insurance policies don’t appear to be subject to the mandate to begin with.

As for the states, the court also found they hadn’t alleged a sufficient injury, and so lacked standing. There was a slightly different reason for this conclusion. The states had said they were injured because the mandate would result in employers dropping employee health coverage, and the resulting exodus of employees would swell the Medicaid rolls and throw the states’ budgets into disarray. The court thought this was too conjectural to support standing. Again, this conclusion has nothing to do with the underlying claims about the mandate’s unconstitutionality.

The only place in the decision where the court went seriously awry is on the question of ripeness. (Judge Urbom admitted that this part of the ruling was non-precedential dicta, because he did not have standing to reach it.) Some readers may recall that the federal government announced a “safe harbor” last February, by which it would delay implementation of the HHS mandate for certain religiously-affiliated employers for one year; during that year, said the government, it would come up with some form of “accommodation” that would solve the religious liberty violations in the mandate. Under the “accommodation” the government sketched out, it would (magically?) deem contraception and sterilization “cost neutral” and force insurance companies to provide these drugs and services “for free” to the employees of religious organizations. Religious organizations were quick to point out that, even if this “accommodation” became the law (which it still hasn’t), it wouldn’t solve the mandate’s religious-liberty problems. Organizations would still be facilitating access to the objectionable services through insurance. What’s more, many religious organizations are self-insured, and so the accommodation would be particularly meaningless for them.

And yet Judge Urbom accepted the government’s argument that the promise of this fanciful “accommodation” rendered the lawsuits premature. This is hard to understand. After all, the HHS mandate itself is a final administrative rule; also final is the narrow “religious employer” exemption (which would exclude the ministries of certain well-known religious figures like Jesus and Mother Teresa, because they insisted on ministering to those of other faiths). The government is not proposing to alter either one of those rules. All the government has done is conveniently postpone enforcement of the mandate as to certain objectors for one year, while it promises to brainstorm about ways to make contraceptives “free” and force insurance companies to provide them at no charge and without using taxpayer dollars. Good luck with that.

The bottom line is that Judge Urbom’s ruling today has nothing to do with the fundamental question of freedom: Does the federal government violate religious liberty by forcing religious objectors to pay a fine for the privilege of practicing their faith? At present, there are 22 other cases pending before other federal courts that are poised to answer that question. And even assuming the technical reasons given by the Nebraska court hold water on appeal (which is highly debatable), many of the other pending cases feature plaintiffs who are indisputably not “grandfathered,” who are palpably “injured” by the HHS mandate, and who will feel the ugly effects of that injury as soon as this Fall. Stay tuned for a decision in one — or many — of those cases that will answer the real question of religious freedom at issue in these crucial cases.”

Kyle Duncan is general counsel at the Becket Fund for Religious Liberty.

NRO: Pharmacists’ Conscience Rights on Trial

by Ed Whelan

December 9, 2011

An important case for the cause of religious liberty is on trial in federal court in the state of Washington. In Stormans, Inc. v. Selecky, owners of a family pharmacy, called Ralph’s, inOlympia, and two individual pharmacists, Rhonda Mesler and Margo Thelen, are challenging regulations that require them to dispense the drug Plan B.

Plan B is intended to be taken following intercourse by a woman or girl who wants to avoid becoming pregnant. According to its manufacturer, Plan B can operate either to prevent conception (i.e., in a genuinely contraceptive manner) or to prevent implantation of an already fertilized egg (i.e., as an abortifacient*).

The pharmacy owners and the two individual pharmacists are Christians whose religious beliefs forbid them from participating in the destruction of an unborn human life. They believe that dispensing Plan B constitutes direct participation in the destruction of human life.

Ralph’s does not stock Plan B. Before the challenged regulations were adopted in 2007, Ralph’s informed customers who requested Plan B of nearby pharmacies where they could purchase the drug, and it offered to call the pharmacies on their behalf. There are more than thirty pharmacies within five miles of Ralph’s that stock and dispense Plan B.

Rhonda Mesler and Margo Thelen are longtime pharmacists who were employed by other pharmacies. They both informed their employers when they were hired that they could not dispense Plan B for reasons of conscience. Because no other pharmacists were on duty during their shifts, they, with their employers’ permission, referred customers seeking Plan B to one of many nearby pharmacies. But, under the 2007 regulations, that accommodation is no longer permitted. Thelen has already lost her job, and Mesler will likely lose hers if the regulations are not struck down.

Pharmacies in Washington, as elsewhere, routinely refer customers to other pharmacies when they receive requests for drugs that are not in stock. Even for drugs that are in stock, they sometimes exercise the discretion to refer customers to other pharmacies where, for example, the customer’s insurance creates hassles related to reimbursement and forms of payment.

The primary—and very important—legal question that plaintiffs present is whether, under the FreeExercise Clause of the federal Constitution, the state of Washington may prohibit them from engaging in referrals for reasons of religious conscience when it has long permitted, and continues to permit, pharmacies to engage in a wide variety of referrals for secular reasons. In other words, can the 2007 regulations really be said to be “neutral and generally applicable” under the Supreme Court’s test in its 1990 decision in Employment Division v. Smith?

A resolution of this question in favor of plaintiffs might also promote the practice of referrals as a model for resolving various clashes between non-discrimination laws and religious conscience.

I will explore these points more fully in subsequent posts.

Let me highlight that I have drawn in this post, and expect to draw in subsequent posts, from the trial brief submitted by the outstanding lawyers at the Becket Fund for Religious Liberty, who are representing plaintiffs.

* There is a rhetorical dispute over how best to label this second means by which Plan B is said to operate. Some call it contraceptive, but that is clearly wrong, as it occurs after conception. There is an argument that the term “abortifacient” should be reserved for drugs that operate after implantation, but for most opponents of abortion the morally relevant fact is that this second means of Plan B destroys the life of an already existing human embryo. That’s why I believe the term “abortifacient” (rather than, say, the more obscure term “contragestative”) fairly conveys this second means.


Read more about the case here.

National Review Online article.





Conscience Cause: Will the President Make a Call for Liberty?

The president was bragging to the crowd about the contraceptive mandate when he made his “Darn Tootin’!” comment. He might have thought it was a funny response, and it did get him some cheers. But the mandate is no laughing matter to Belmont Abbey, or to the millions of Americans whose religious convictions forbid them from distributing drugs that cause abortions.