Strict Scrutiny - Well Played, Sirs

Episode Date: July 8, 2020

*another airhorn* Leah and Melissa break down the Court's major contraception case. Welcome to Gilead! Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back. This is Strict Scrutiny, a podcast so fierce it's fatal in fact. I'm Melissa Murray. And I am Leah Littman, or perhaps Leah of Deacon or of Thomas. Of Dan. Of Dan.

Of Dan. Of Dan. So it's a blessed day, Melissa. And we are, of course, going to be recapping the Supreme Court's opinion in Little Sisters of the Poor versus Pennsylvania, the Affordable Care Act contraception mandate case. Under his eye. Lots of handmaid's tale puns for reasons that will become clear. Let's first start off with this case probably did not get the attention that it deserved throughout this term. I think everyone was focused on June medical services. No one seemed to give a damn about this case when arguably it probably is as meaningful, maybe more meaningful to the women of the United States in a real and material way. So that's a provocative statement to start off with. Yes. And that's part of why we wanted to do this episode to ensure that this case

did not get lost in the shuffle. I think part of the lack of attention to this case, though, was also a sense of how inevitable the result was given the change in the court's personnel, as well as the court's two prior cases in which it addressed the ACA's contraception mandate. So maybe we should provide some background on the contraception mandate, just because, again, this case has not gotten some of the attention that the others have. So the case involves what is called a challenge to the Affordable Care Act's contraception mandate. But the Affordable Care Act statute requires minimum essential coverage to be offered. And part of that minimum essential coverage that has to be offered through employer-sponsored health plans is, quote, preventative care and screenings without any cost-sharing requirements. Now, immediately after the ACA was enacted,

the Obama administration started promulgating regulations indicating its view that preventative care and screenings included access to contraception and counseling. Once it indicated its intent to extend the minimum essential coverage required under the Affordable Care Act to include contraception. There were, even at the outset, these religious liberty challenges arguing that. We should also back up and say there were also included in the ACA and specifically contemplated exemptions for religious institutions. So churches, temples, and mosques were not required

to comply with the contraceptive mandate. Religiously affiliated institutions, so parochial schools, for example, or charities that are affiliated with religious institutions, were not automatically, blanketly accepted from this. But they could participate in an accommodation process whereby they notified the insurer that they had these religious objections, they could not provide the coverage, and the insurer then took it upon themselves to provide the coverage directly to the employee. Right. So as initially promulgated, there was the church exemption, which is required by statute and otherwise. But then the Obama administration's plan was what was known as the self-certification exemption. An employer who had religious objections to providing contraception coverage would notify

their health insurance administrator or plan that they had those objections, and then that third-party administrator or health insurance plan would provide coverage to the employees at either the federal government or the plans, third party administrators expenses, but not the employers. And so prior challenges argued that even that exemption was not sufficient to protect the religious objections to contraception access. Now, fast forward to the Trump administration. Instead of that self-certification exemption, they promulgate a new regulation that says any entity with religious or moral exemptions. Okay. And that's huge. I mean, that's a massive

expansion of the exemption to not simply be about religion, but any kind of moral objection to the provision of contraception. Yes. And those employers who have either religious or moral exemptions not only don't have to provide coverage, but don't have to engage in any certification process such that the insurance providers offer contraception coverage as well. So those employers can just opt out of their employees having access to health insurance coverage for contraception. And that is the regulation that was challenged in this litigation that the Supreme Court upheld in a pretty fractured decision. It's essentially five with the five conservatives in the five written by Justice Thomas, and then two, Justice Kagan and Justice Breyer agreeing with the

conclusion, but maybe not all of the reasoning and leaving some wiggle room for future challenges, and then a dissent, Justice Ginsburg and Justice Sotomayor. We should also mention the parties briefly. Obviously, the Trump administration is one party to this. They want to maintain their regulations, which allow for these broad accommodations. The other parties include the states who are challenging. So Pennsylvania is one of the states challenging this. And the state's argument is basically, if the religious employers or the employers with moral objections don't provide this coverage and don't have to have any accommodation, then it then falls to the state to provide these protections to females within their jurisdiction. So the state absorbs the

employer's objections and the cost of the employer's objections. And then intervening on behalf of the Trump administration is a group of nuns, the Little Sisters of the Poor, that are actually kind of repeat players at the court at this point. They were also one of the groups challenging the accommodation process back in 2016 when the Supreme Court during that Scalia's death interregnum didn't have a full complement of nine. And they could not reach a conclusion in this case. And they actually just sent it back to the lower courts to try and get both the religious order and the government to work out some kind of accommodation that would be amenable to both sides. And obviously that did not happen. And so here,

the Little Sisters of the Poor have intervened on behalf of the Trump sides. And obviously that did not happen. And so here, the Little Sisters of the Poor have intervened on behalf of the Trump administration. And I just raised the Little Sisters in part because it's a very sort of telling statement about how much of this kind of litigation is really about optics and aesthetics. I mean, you could not get a better intervener than the quote unquote Little sisters of the poor. And, you know, and that allowed for a better caption instead of Donald J. Trump versus Pennsylvania, you know, Trump taking away all of the contraception coverage. It is little sisters of the poor versus Pennsylvania. It's just it's very canny. The groups who are sort of fronting this litigation,

like the Beckett Foundation, the ADF and whatnot, they're very canny, I think, about selecting their plaintiffs. So, you know, well-played sirs, like that was a stroke of genius. Yes. And I think it's important to note how the court describes the objections to contraception, because we've previously talked about, or you've previously talked about Justice Thomas writing about the so-called origins in eugenics of both the contraception and abortion movements. And here, the court notes that the objections to contraception are essentially the same as the objections to abortion, namely the religious objections to providing contraception is that the challenge methods of contraception, is that the challenge

methods of contraception also cause the death of a human embryo because human life begins at conception before implantation. And to be clear, science, there's some disputed views about that among the scientific community if contraception is actually an abortifacient. So there are, I think, some dispute about that. Yeah. Particular proposition. But what is science to get in the way of stripping women of healthcare, Melissa? Again, under his eye.

Wait, wait, here comes my husband. You got my robe from the dry cleaner. My red robe is back. Oh, great. I'm ready. I'm ready for today. Great. Unfortunately, I do not. I'm ready for today. Great. Unfortunately, I do not yet have one. But you will. Right. Exactly. I will order one quickly.

So the precise statutory question that the court answered, along with some other questions that we can discuss is whether the Affordable Care Act authorized the agencies here to exempt these particular employers from providing this particular kind of health insurance coverage. A provision of the Affordable Care Act empowers an agency to determine which services should be included as preventative care and screenings. And the argument was that provision did not authorize the agency to determine which entities could be exempt from those exemptions. That is, the agency could say this kind of health insurance coverage has to be offered, but not these groups of people are exempt from providing that health insurance coverage.

And by a vote of seven to two, Justice Kagan and Justice Breyer agree with the majority's bottom line conclusion, but not its reasoning. The court concludes that no, the statute does in fact authorize the agency to determine not only what services are covered, but also who is required to cover them and who is not. Now, the difference between the reasoning in the Thomas opinion and Kagan opinion is, I think, reflective of two competing visions of the administrative state. The majority... What's that? We might not have that. Right, exactly. According to the majority opinion, the administrative state might not be long for

this world. Specifically, the majority says the statute's plain language, just its best interpretation means that the agency has this authority to determine which services are offered and who is exempt from those requirements. Justice Kagan, however, relies on a doctrine that has undergone a bit of a hit and is kind of the doctrine that shall not be named, Chevron deference, the idea that agencies get to interpret ambiguities in the statutes they administer. And she says, look, I don't know what the best reading of this statute is and whether it allows the agency

to exempt entities from providing certain kinds of coverage. But I think that the agency's conclusion that it can is at least reasonable, given that this was the position of not only the Trump administration, but the Obama administration, and just makes sense of the statutory scheme. I mean, I think that's a brilliant summation of it. She also notes that this question about whether the regulations are properly promulgated under the APA is still a live issue in the lower courts. And so she sort of makes clear, and I think part of this opinion is to bracket that that actually has not been decided here. And so she notes that for the record, the APA may actually

save us again some more. The APA is doing a yeoman's job with this court. It really is. And I kind of view her opinion, Justice Kagan's separate writing, as like an ad law professor's roadmap to bringing Administrative Procedure Act challenges to this regulation in the future. that the agency had failed to issue notice of proposed rulemaking, and also that it had adopted the final rule through a process in which it had a closed mind. And the court says, we reject those challenges. But Justice Kagan says, look, there are still these other arbitrary and capricious challenges on the table, namely that there's a mismatch between the scope of the exemption and the problem that the agency set out to address. Also, some of the scope of the rule is pretty sweeping in light of its justifications. In some ways, it's not clear that the agency grappled with all of the consequences

of its rule and the scope of the rule. And so those challenges live to see another day, though I have to say, snowball's chance in hell that this court would uphold any of them. Two things to say about that. One, I think she is pointing to the idea that religious freedom is one thing. And, you know, obviously, within the scope of the government's constitutional duty under the First Amendment. But the idea of moral objections is another thing entirely. I mean, moral objections is like, I am morally opposed to wearing pink, or I am morally opposed to, you know, eating meat.

How about I'm morally opposed to allowing employers to opt out of providing contraception coverage, right? Like, why can't I bring that moral objection claim? So I think that's part of her point, too. Like, you know, religious liberty on the one hand is a completely different entity. And you may quibble about whether this particular court has weaponized the First Amendment such as to make religious liberty preeminent among all values. But her point is that moral objections are not in the Constitution, and that still lives to be determined at the lower courts. And I also think the second point is a more subtle point, but it is about electoral politics. The questions about these rules and rulemaking are questions that originate from the executive branch and the administrative state.

But under a differently headed executive branch, maybe we wouldn't have this at all. So kicking this down the road past November, for example, might eliminate all of these problems entirely if the Trump administration is no longer the one promulgating these rules. Yes, no, that is certainly right. And maybe will help me sleep tonight, although we will be anxiously awaiting the end of the court's term. So maybe not. I did want to note two things about the Thomas majority, because I mentioned that Justice Kagan had relied on Chevron deference. One is that the Thomas majority notes that no party had brought a non-delegation challenge to the Affordable Care Act's grant of authority to agencies to determine what are essential health care services that have to be covered.

And that is important because, of course, that is the doctrine that could undo, in Justice Kagan's words, much of government today. That goes back to her opinion in Gundy. And again, that non-delegation principle that Thomas is invoking is that the intelligible principle, like whether in delegating its authority to the administrative agency, Congress has provided clear guidelines for the agency to use.

And so Thomas's point is Congress in passing the ACA never specifically denominated contraceptive coverage as part of those preventative services. Although one might note contraception to prevent having a child. Is a preventative service. Is a preventative service. Whoa, I see what you did there. One other thing that was notable to me in the Thomas majority was just its bottom line conclusion that Congress essentially limited the agency's discretion in no way at all. And its conclusion that Congress gave the agency such sweeping deregulatory authority to exempt people

from otherwise applicable requirements. And part of why that's notable to me is, well, one, how convenient, right? Like the conservatives on the court conclude that a statute granted conservative administration sweeping authority to do what they wanted. But second is, I think it sits uncomfortably with Justice Thomas's position in particular in the DACA case, where he concluded that immigration statutes didn't give the Attorney General or the President at all the ability to develop enforcement guidelines for how immigration law would be enforced. One other issue that was in the case, though not decided, was the relevance of the Religious Freedom Restoration Act. That's a statute that the Trump administration was arguing actually required them to exempt entities from the contraception mandate.

The court, the Thomas majority, does not decide that issue. But two very enthusiastic fellows choose to go ahead and do so. our friend, hashtag stay mad, Sam Alito and Neil Gorsuch would have held that the Religious Freedom Restoration Act required the agency to exempt entities from not only a contraception mandate, but from any accommodation process that had existed to date. Which is actually, I think, really interesting. So one, if you're like RFRA, that sounds familiar. It does sound familiar because we talked about it when we talked about the Title VII cases and the decision that was handed down, written by Neil Gorsuch. Neil Gorsuch was the one who wrote that RFRA functioned as a sort of super statute that perhaps could answer all questions about religious employers and their

requirements to comply with the terms of Title VII, and particularly the fact that Title VII now extends to sexual orientation discrimination and gender identity discrimination. So again, a kind of redux here that RFRA is sort of a way out for religious employers as to the Title VII cases and here as well. So that's one point that's interesting. To Justice Alito's point about RFRA providing an exemption to even the accommodation process for employers, that seems to sit uncomfortably with his decision in 2014's Burwell versus Hobby Lobby, where he said that closely held corporations under RFRA were not required to provide the contraceptive coverage themselves, but could be included in that accommodation process that was available for religiously affiliated employers.

And if I recall correctly, I think Justice Ginsburg and possibly Justice Sotomayor was just sort of like, that's a slippery slope. And it seems like they were exactly right. It is a slippery slope because he seems to have been, he seems to have reneged on that. Welcome to the Cassandra Club, ladies. It's a big tent, right? Yes. You're destined to know the truth and not be believed. Everyone gets their own Trojan horse upon entering the membership. Yes. So I think we should probably talk about the Ginsburg and Sotomayor dissent because it is in that dissent that the women finally become visible. She not only explains the number of women who would lose access to contraception, but also how significant contraception is to women's lives. It not only improves health outcomes, prevents unintended pregnancies.

It also provides important medical benefits for women with underlying medical conditions. I think this is sort of a recurring theme in Ginsburg's jurisprudence. I'm reminded of the Redding case, that Fourth Amendment search case, where the court upheld a search of a 13-year-old girl in a school. And Ginsburg at the time was the only woman on the court. This was during that period between 2005 when Sandra Day O'Connor retired from the court in 2009 when Justice Sotomayor joined. And she said like, you know, it seems like none of you all have ever been a 13 year old girl in middle school and they had done. She was like, you know, it's like incredibly embarrassing and, you know, an assault to your dignity as a girl to be strip searched in this

way. And I think she's making that same kind of claim here. I'm not just talking about contraception as, you know, this isn't just about preventing pregnancy. Some women will use it for really severe acne. People will use it for endometriosis, like serious cramps. Polycystic ovaries. All of this. There's a whole world of which you know nothing and you can't know unless you choose to educate yourself about it. And that seems to be your point here. I will also note that when this case was heard, this was during those telephonic arguments, Justice Ginsburg was in a hospital bed being treated for her gallbladder issues. And even then, I mean, she might've been a little salty because she just had gallbladder surgery, but she also just seemed genuinely pissed

to be back here. Are we, are we, I mean, like, I think her whole mood was like, I literally can't believe we're talking about this shit again, like seriously. And like, remember she was just sort of pontificating? Like, they're all just those soliloquies. And then at the end of her soliloquy,

there'd be like a little uptick in her voice to make it a question. But it was like, so this is some shit, right? And what would you say about those women? Right?

You're screwing over, right? I think this dissent could have been lifted from her dissent in Gonzalez versus Carhartt, anything that she has written about contraception in the past. I mean, this whole idea about women's equality and their ability to participate in public life, the marketplace, whatnot, being linked to their ability to control their reproductive capacities. I mean, it's all here in this opinion. And she's like, stay mad, Ruth. And I'm here for that too. Hashtag stay mad. I am too. And it's important, I think, to underscore that the access to equal social and economic opportunities arises not only from

the ability to control whether you become pregnant and when, but also your ability to manage the health conditions, the underlying health conditions that contraception often can do, right? It is a way of managing women's pain. It is a way of managing a variety of medical conditions. And so, again, you are impeding women's access to this health care that not only prevents unintended pregnancies, but also addresses a variety of other health conditions. So I'll just say this. I was looking at the New York Times.

Adam Liptak had a story up about this case, but also included in it was sort of some polling data about how Americans actually view this issue. And so interestingly, this is viewed very differently, I think, from abortion rights. I think even among Democrats, there is some skepticism that employers should be made to cover contraception. And there's this kind of sense like those are private decisions that should not be subsidized by employers at all. If you want to use contraception, it is your private choice and you should privately manage it. Maybe it's not altogether different from abortion in terms of like public funding of abortion. Maybe it's completely in sync with that. But to me,

it's actually really of a piece with this moment we are in, in the pandemic where everything has sort of retreated to the home. And, you know, we're seeing all of these stories. I think Florida State University sent this ridiculous letter to their employees saying that they had to verify that their children were in child care and not at home once regular operations resumed because the university felt that caring for your children was a dent on productivity. And they're not wrong. I mean, like like it's really hard

to be productive when you have children running around, but there aren't other childcare options available right now. Or if they are, they're imperfect. If you're, if you have preexisting conditions that make you immunocompromised or more susceptible to getting COVID. And it just seems like anything involving family matters generally are private decisions that cannot be publicly accommodated in any way. And I find this really interesting because this decision to me is of a piece with that. And it comes from this conservative wing of the court, which is always the sort of wing talking about family values. Like part of family values is being able to manage your family.

I mean, I think that that's totally right. And it's also consistent, in my view, with another piece of the pandemic too, which is the paucity of employer-sponsored health care and health benefits, right? Like we are seeing that system come up short in the pandemic. We are also seeing it come up short here, right? Like if you don't like private employers subsidizing healthcare that allows people to participate in the workforce, right, there's an option. It's called public funding, right? Like these are the choices, either this like patchwork scheme of enlisting private employers to provide health insurance or, right, the option is public insurance. The bottom line, I think, is sort of the underlying theme of all of this is maybe women shouldn't work.

Like, right. Like maybe. If you can't work because you have cramps, maybe you shouldn't be in the workplace. If you need your employer to give you birth control to manage your acne or to prevent yourself from becoming pregnant, like maybe you shouldn't be working. And that I think is the bottom line. So of Dan, I don't know what to say, but I'm changing my name to either Cassandra or of Josh. What do you think? Which sounds better?

Are we allowed – do we get a second name in Handmaid's Tale? Like, can your nickname be Cassandra and you're just of Josh? I thought you were going like, could you have two ofs? Like, I'm like, that would be polyamory. Definitely not allowed in Gilead. Yeah, no, that was not where I was going. Well, it has again been a blessed day in Gilead, listeners. Thank you, as always, for tuning in and listening in under his eye.

And you realize when Gilead comes, you and I are going to be sent to the colonies. Oh, yeah, most definitely. But that's why we're doing podcasts now. All right, listeners, thanks for listening to this. Again, I mean, we tried to tell you. We really did. We tried to tell you like 150 times. So when you were all

woke Lito, Chief Justice Roberts. Oh, we didn't even talk about Chief Roberts. Feminist hero. We didn't even talk about his fall. Oh, no, we did not. Court culture, court culture. Court culture, court culture segment.

News broke late last night that the chief justice had been hospitalized and stayed overnight in the hospital after a fall at his country club in late June that required sutures and stitches. And his head was covered in blood. Yes. That was one of the news. So this is interesting on a number of levels. So one, the court's statement obviously came a month late about it and left out a lot of details like that he was at the Chevy Chase Country Club where also a member is one Justice Brett Kavanaugh. And we only know that because the disclosures about the joining fee

for the country club were discussed when Justice Kavanaugh was nominated to the court. So they're both members of this country club. The court statement said only that he was walking outside of his home for exercise as any of us would do. Um, but it was, he was walking at a country club. Um, and you know, he, it seemed like they say it was because of dehydration. Um, and he took this fall. It's, they didn't talk about the severity of the fall and they, they note that he is now recovered and it's fine. But apparently eyewitnesses tipped off the Washington Post that it was kind of serious in that he was covered in blood. Covered in blood.

So here's my question. Like anytime anything happens to Justice Ginsburg, we find out immediately, and the whole nation goes into candle lighting vigils for her. How did we not hear about this for until a month later? Well, there's usually some delay with Justice Ginsburg even, you know, here, maybe there was a little bit more, but no, I like, yeah, 28 days later. I mean, that's like a zombie movie. Yeah, that's fair. Well, I don't know. He was too busy preparing for the women's march that he's no longer invited to. I don't know. I have no great explanation for this. I think it's really interesting that I mean, again, sort of questions of transparency. I do wonder what the president will do with this. I mean, every time

Justice Ginsburg gets sick, there's always a sort of flurry from him, like some tweets about how she shouldn't be on the court. I haven't seen anything from him about this. Maybe he's redeemed himself today with these decisions. But yeah. So we're glad the Chief Justice has made a swimming recovery. Good for him. That's great. I really do have questions just generally about transparency. And I don't think every sort of health emergency needs to be reported in great detail, but I do think it is telling and just weird that this didn't come out for a month. Yes. That just seems weird. Yes. Yes. And also that even when it did,

there were even some people questioning whether we had a right to know about this, though there are not often similar questions when, say, Justice Ginsburg is hospitalized or treated for cancer. Yeah. But again, maybe women just shouldn't be working. So there we go.

Stay at home, and then you can keep your private life private. Yes. Anyway, Leah, this has been, as usual, a sobering, but kind of fun. Yeah, kind of fun. We are bringing whatever joy we can out of these last moments of reproductive freedom. Exactly. So there's that. Thank you, listeners, for joining us. And thank you, Melody, for producing this episode. And to the majority, all we can say is, well played, sirs. Well played.