President Michael F. McLean: “The Legal and Philosophical Arguments Against the HHS Mandate”

By Michael F. McLean
President, Thomas Aquinas College
Address before the American Maritain Association
March 3, 2017

I am grateful for the opportunity to address you today. Thank you to Jim Hanink and the Maritain Association for the kind invitation and for his patience as we worked out an appropriate topic for this talk.

I am going to speak to you today about the legal and philosophical arguments that led Thomas Aquinas College’s board and faculty to vote unanimously to publicly oppose the HHS mandate and to act on its conviction by joining other organizations, some Catholic and some non-Catholic, in filing suit against it.

I want to acknowledge the essential role played by our attorneys from the Jones Day law firm in Washington, D.C., who crafted the legal argument against the HHS mandate. Much of the factual background and legal reasoning I am presenting today is taken from the legal brief our attorneys submitted to the United States Supreme Court.

I also want to acknowledge the role played by members of the Thomas Aquinas College faculty and Board of Governors in our deliberations about our response to the mandate, and I especially want to thank Michael Augros and John Goyette for their help in putting together the details of the moral argument against the mandate that I am outlining in this talk.

First, a few facts. The Patient Protection and Affordable Care Act requires group health plans and health-insurance issuers to provide coverage, without cost sharing, for a range of services, including women’s preventive care and screenings. Failure to comply with this requirement results in severe monetary penalties — providing a noncompliant health plan, for example, subjects employers to penalties of $100 per day per affected beneficiary, while dropping health coverage entirely exposes employers with more than 50 employees to penalties of $2,000 per year per employee after the first thirty employees.

Congress itself did not specify what types of preventive care must be covered under the mandate. Instead, it left that decision to the Health Resources and Services Administration, which is a component of the Department of Health and Human Services. HRSA, in turn, outsourced the definition of preventive care to the Institute of Medicine, a nonprofit group of volunteer advisors. HRSA provided the IOM with a very short time frame to make its recommendations, with the final report due barely six months from the time a committee was empaneled to study the topic. To make a long story short, it is fair to say that the process resulted in a mix of objective and subjective determinations filtered through a lens of advocacy.

Among those determinations was the recommendation that preventive care be defined to include the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. This included four FDA-approved contraceptive methods that we, and many others, consider to be abortifacients because they may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. The government took only days to adopt the IOM’s recommended definition of preventive care.

While the mandate imposes draconian penalties for noncompliance, it never applied uniformly to all health plans. In an effort to gain political support for the ACA, Congress created a broad “grandfathering” exemption (applicable to any health-insurance plan in effect before March 23, 2010), which, while requiring grandfathered plans to comply with certain protections of the ACA — such as the elimination of lifetime limits and covering dependents up to age 26 — did not require those plans to include coverage for preventive services. As a result of the grandfathering exemption, the contraceptive mandate does not apply to tens of millions of people.

Either because it recognized that it was legislating against the backdrop of the Religious Freedom Restoration Act, or because it did not contemplate that the federal bureaucracy would transform this seemingly innocuous provision into a controversial mandate for abortifacient and contraceptive services, Congress did not itself exempt religious organizations from the preventive-services requirement. Upon adopting the IOM’s definition of preventive services, however, the government recognized that some religious exemption would be necessary and, accordingly, crafted a religious exemption that was very narrow.

Unlike RFRA, for example, the exemption does not apply to any “person” who objects to the mandate on religious grounds. Nor does it conform to other federal conscience protections in the healthcare context, such as the Church Amendment, which safeguards entities that oppose sterilization or abortion “on the basis of religious beliefs or moral convictions.” Nor did the government follow the well-established statutory exemption under Title VII, which allows any “religious corporation, association, educational institution, or society” to use religion as a criterion in employment decisions. Instead, the government tethered the exemption to an obscure provision of the Tax Code that is not designed to protect organizations from being forced to act in violation of their beliefs, but instead exempts a narrow class of entities from having to file informational tax returns. The exemption thus covers “churches, their integrated auxiliaries, and conventions or associations of churches,” as well as “the exclusively religious activities of any religious order.” As the government explained, the exemption is designed to protect only “houses of worship,” while excluding their nonprofit charitable and educational arms.

Instead of an “exemption” the government offers what it calls an “accommodation” to objecting religious charitable and educational institutions. Called an “accommodation” because it does not allow the religious organization to be billed explicitly for the objectionable coverage, it still requires the organization to provide or facilitate the mandated coverage even if it does not have to pay for it.

To avail themselves of the accommodation a religious organization must sign and submit a “self-certification” directly to its insurance company or third-party administrator (in the case of self-insured organizations like Thomas Aquinas College), or sign and submit a “notice” to the government providing detailed information regarding its plan name and type, along with the name and contact information for any of the plan’s administrators or health insurance issuers.

The effect of either submission is the same. By signing and submitting the form, the religious organization authorizes and obligates the insurer to arrange payments for contraceptive services for beneficiaries enrolled in the organization’s health plan. For self-insured organizations, signing and submitting the self-certification or notification also creates a unique incentive for their TPA’s to deliver the objectionable coverage. If, and only if, an eligible organization submits either document, will the government reimburse the TPA for the cost of delivering the coverage.

Likewise, the government has repeatedly conceded that in the self-insured context, “the contraceptive coverage is part of the objecting organization’s health plan.” This concession was unavoidable because TPAs have authority to administer only the coverage a plan sponsor includes in its health plan. To make the mandate work, then, the regulations require self-insured religious organizations to effectively amend their health plans to “ensure that there is a party with legal authority to arrange for payments for contraceptive services.” Both the self-certification and the notification provided by the government upon receipt of the eligible organization’s submission are deemed to be “instruments under which a self-insured plan is operated.” Put another way, a religious objector’s TPA is barred from providing contraceptive benefits to the objector’s plan beneficiaries unless the sponsoring organization provides the self-certification or notification.

You will forgive, I trust, this lengthy summary of the facts surrounding the HHS mandate. The facts have to be clearly set out, however, if the legal and philosophical arguments against the mandate, and the College’s decision to join litigation against the mandate, are to be understood.

From the time of its founding in 1971, Thomas Aquinas College has defined itself as a Catholic college offering a program of liberal education which takes faith and the teachings of the Church as starting points and endeavors to help students deepen their knowledge and love of God. The motto of the College could very well be “fides quarens intellectum” — faith seeking understanding. In keeping with this fundamental commitment, and wanting to model this commitment to its faculty, students, and constituents, the College has always resisted providing objectionable insurance coverage. Since the mid-1990s, however, such coverage has been mandated by the State of California.

In response to the California mandate, the College joined the Religion Employee Trust Association (RETA), whose health plans only provide benefits that are in compliance with the Ethical and Religious Directives for Catholic Health Care Services published by the National Conference of Catholic Bishops. Since members of RETA self-insure they are not subject to the California mandate but are subject to the HHS (federal) mandate because the HHS mandate does apply to self-insured entities.

In keeping with its Catholic character, and with its tradition of only offering insurance coverage compatible with Catholic moral teaching, it was fairly obvious to us that we were opposed to the HHS mandate in principle. With support from the faculty and the Archbishop of Los Angeles, and after broad and thorough discussion at the Board level about the prudence of publicly opposing the mandate, and, finally, with the assurance of pro bono representation from the Jones Day law firm in Washington, D.C., the Board voted unanimously in 2013 to authorize the College to join in litigation against the mandate.

Together with the Archdiocese of Washington, D.C., and The Catholic University of America, Thomas Aquinas College filed suit in the District of Columbia in September of 2013. We did so to avoid an almost certain defeat in the Ninth Circuit. On December 20, 2013, the district court issued a final judgment in favor of Thomas Aquinas College, largely having to do with our self-insured status, but rejected all other petitioners’ claims. Those petitioners appealed the court’s adverse decision, while the government appealed the decision in favor of TAC.

After oral argument and supplemental briefing, the D.C. Circuit ruled in favor of the government on both of these appeals. All petitioners sought rehearing en banc, which the court denied on May 20, 2015, with two judges dissenting. The D.C. Circuit granted petitioners’ request for a stay of the mandate pending certiorari. The U.S. Supreme Court heard the case on March 23, 2016, and in a 4-4 split decision directed the parties to try to negotiate a settlement which would be acceptable to all. Negotiations stalled in anticipation of the presidential election, and no acceptable settlement was reached.

With the factual background in place, I want to turn to a discussion of the legal arguments against the HHS mandate and then to a discussion of the moral and philosophical reasons for our opposition to it.

The legal foundation of the argument against the HHS mandate is the Religious Freedom Restoration Act (“RFRA” for short). The Act was passed in response to two Supreme Court decisions which seemed to limit the “free exercise of religion.”

In one case, Native American tribes tried and failed to use the first amendment to prevent the U.S. Forest Service from building a road through sacred land; in the other, two Native Americans tried and failed to overturn the state of Oregon’s refusal to give them unemployment benefits after being fired from their jobs at a rehab clinic for testing positive for mescaline, the main psychoactive compound in the peyote cactus, which they had used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries.

The Religious Freedom Restoration Act, perhaps ironically enough, was introduced by Congressman Chuck Schumer on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy the same day. A unanimous House of Representatives and a nearly unanimous U.S. Senate — three senators voted against passage — passed the bill, and President Bill Clinton signed it into law.

RFRA prohibits the government from imposing a “substantial burden” on “the exercise of religion” unless doing so is “the least restrictive means” of furthering a “compelling governmental interest.”

The government imposes a substantial burden on religious exercise whenever it places substantial pressure on a religious adherent to act contrary to his sincere religious beliefs. In this particular case, the challenged regulations substantially burden our religious exercise by threatening us with potentially ruinous penalties unless we take specific actions to comply with a regulatory mandate to provide abortifacient and contraceptive coverage, the use of abortifacients and contraceptives being contrary to Catholic moral teaching.

Ample case law establishes that it is up to the individual to determine what is “an exercise of religion.” If a religious adherent sincerely believes that taking a particular action would make him complicit in the sin of another, then courts must defer to that belief. I will turn to a philosophical and religious consideration of such complicity or cooperation shortly. To continue our legal analysis, we must note that RFRA permits the government to force a plaintiff to violate his beliefs if it can prove a “compelling” need to do so. Such coercion can be justified, however, only if it is the “least restrictive means” of furthering such a compelling government interest.

In the case of the HHS mandate, the government has not and cannot establish that granting a religious exemption for plaintiffs would undercut any “compelling” interest. It has granted numerous other exemptions covering millions of people for reasons such as administrative convenience and political expediency and has granted “religious” exemptions to many “religious employers” that have no objection whatsoever to complying with the mandate, while denying exemptions to religious nonprofits that do object. After granting all of these other exemptions, the government cannot seriously claim that granting one more exemption for petitioners would imperil any “compelling” interest.

Moreover, the government has also failed to offer any evidence — let alone prove — that it cannot use some less-restrictive means to deliver free abortifacient and contraceptive coverage independent of petitioners’ health plans. Given its extensive powers and vast resources, the government cannot seriously contend that forcing petitioners to act in violation of their beliefs is necessary to provide the mandated coverage. Instead, as was argued before the Supreme Court, the government could accomplish its goals through existing programs, such as the insurance exchanges established under the Affordable Care Act, the Title X family planning program, the Medicaid program, or with other forms of tax subsidies.

Courts cannot second guess religious objections that are based on a theory of moral complicity or cooperation. If a religious adherent sincerely believes that taking a particular action would make him complicit in the sin of another, then courts must defer to that belief. In Burwell v. Hobby Lobby, the Supreme Court said that whether an act “is connected” to wrongdoing “in a way that is sufficient to make it immoral” is fundamentally a question of private religious belief and moral philosophy.

Having outlined the legal argument against the HHS mandate, I turn now to the philosophical argument against the mandate to show that the degree of cooperation it requires is, in fact, immoral.

We can begin with St. Alphonsus Ligouri (d. 1787) — a Doctor of the Church — who, in his Theologia moralis presents the magisterially accepted distinction between formal and material cooperation. He distinguishes the two in terms of the cooperator’s concurrence or lack thereof in intending the evil willed by the principal. One formally cooperates with another if one intends the bad the principal seeks.

In commenting on Ligouri’s formulation, Fr. Kevin Flannery points to an implicit distinction between “intending” and “willing.” One shares in the evil will of the malefactor — and so formally cooperates with the malefactor — by directly and essentially aiding the evil act even if one does not share the intention of the malefactor. For example, a physician’s assistant or medical student assisting a doctor performing an abortion by employing a curette to dismember the baby would be formally cooperating with the doctor even if he is personally opposed to abortion or does not intend the bad action as an end in itself but as a means to some other — good — end, like remaining in medical school or securing a positive letter of recommendation.

Material cooperation refers to instances in which the agent’s act furthers the principal’s yet, in contrast to formal cooperation, the agent does not share in the evil will of the principal. Another way to put this: one cooperates materially if one supplies something necessary for the evil action to take place, but the thing willed by the cooperator is something that in itself is good, or at least morally neutral. For example, a gun shop sells a gun to someone who later commits felony murder. Selling a gun is arguably an action that in itself is morally neutral, but in this case by selling the gun the owner of the store has materially cooperated with evil.

St. Thomas Aquinas says that “the primary evil in moral actions is that which is from the object” — i.e. the nature or species of the act: for instance, “to take what belongs to another.” Such an act is evil even if done with a good intention. The object is what the agent directly wills and an agent can never will an evil for the sake of a good. In judging whether an agent formally cooperates in the evil of another, one looks to the object itself of the cooperator’s will, not to whether the cooperator shares the intention of the principal.

Even some staunch Catholic moralists have argued that cooperation with the HHS mandate is justified so long as the cooperator intends a good — for example, the good of continuing to provide health insurance for employees or the good of avoiding substantial fines or penalties. But judging the morality of cooperating with the mandate requires that we look not to the cooperator’s intention but to the object of the cooperator’s will.

Consider the original mandate prior to the government’s current “accommodation,” which required that we provide health insurance coverage that includes contraception, sterilization, and abortifacients. Since we are self-insured, we would be directly arranging coverage and potentially paying for services that are, according to Catholic teaching, intrinsically evil or for drugs whose sole purpose is to do what is intrinsically evil. Putting these arrangements into place would be the object of our will. There is no question that this would be a case of formal cooperation with evil because, by designing and administering a health plan that explicitly includes these things, we are, in principle, willing for these evils to happen and, arguably, even encouraging these evils to happen. The threat of a government fine, or the fact that no employee elects to use the coverage, does not essentially alter this fact.

What about the so-called “accommodation”? According to the government’s description of the accommodation, it provides separate funding for the objectionable coverage and in the case of self-insured plans, such as our own, it shifts the responsibility to administer the objectionable coverage to the TPA, or third-party administrator. The only action required to take advantage of the accommodation, according to the government’s description, is to fill out a one-page certification form — the infamous EBSA Form 700 — stating our objections to providing the coverage in question.

But the government’s description of this form as merely giving notice that we are opting out is deceptive because it leaves out an important feature of the certification form. The form not only states our objection to providing contraceptive services. It also directs, and indeed authorizes, our TPA (third party administrator) to provide the very coverage to which we object. The self-certification form serves this purpose because our TPA’s obligation to provide the objectionable services follows from our contractual relationship with our TPA, and submitting the form effectively modifies our contract with our TPA. By sending our third party administrator the self-certification form we are, in effect, notifying or instructing him that if he wishes to remain in a contractual relationship with us, he must provide the objectionable coverage. If our TPA refuses, and our contract is voided, we must then find a TPA willing to provide the objectionable coverage. We thereby play a central role in the process by directing someone else to do what we think is intrinsically evil. That is an instance of formal cooperation. Of course, the TPA might be a willing participant, but that does not excuse our role in the process.

It is worth noting that the wording on the self-certification form makes clear that it is not simply an objection notice. It should be noted, too, that the alternate way of fulfilling the requirements of the accommodation (namely, sending a notice to the Secretary of Health and Human Services supplying the name and contact information of our TPA), is involved in the same difficulties.

This becomes clear if one consults the federal regulations that outline the juridical function of the notice to the Secretary. Indeed, the wording on the self-certification form indicates that both the form and the notice to the HHS Secretary serve the very same legal function. It reads: “This form or a notice to the Secretary is an instrument under which the plan is operated.” That language seems to say that the form, or notice to the Secretary, is the means by which the objectionable coverage is arranged. And that interpretation is borne out by consulting the federal regulations.

In sum, merely notifying the Secretary or our TPA that we object to the mandated coverage does not, by itself, make us complicit in these evils even if we foresee that someone else will provide these “services” once we refuse to do so. That is not the issue. The problem is that the mechanism by which we register our objection necessarily involves us in arranging the very coverage to which we object.

Now, to conclude. The Religious Freedom Restoration Act was an attempt to protect the First Amendment right to the free exercise of religion. At the root of the debate over the HHS mandate is a difference of opinion about what constitutes an “exercise of religion.” In this particular case, government agencies seem content to limit “exercises of religion” to private prayer and worship, intent, as they appear to be, on circumscribing religion’s role in the public square. Some, however, may be intent not just on circumscribing religion but on eliminating religion from the public square altogether, or on taking steps which could even lead to the destruction of religion — for requiring people to be complicit in immoral activity is to require people to approve of immoral activity, and, in so doing, abandon central moral precepts of their faith. In the end, this would eliminate religion as a force for moral good in society.

Donald Trump’s election might give us a temporary reprieve in the fight against the federal government on this issue, but some state governments are already rallying around the effort to require contraceptive coverage in state-regulated insurance policies. Regardless of what the Trump Administration might be able to do, the war over religion will go on, and those who wish to be faithful to their religious beliefs must be prepared to fight.

Thank you.