In Burwell v. Hobby Lobby Stores and Zubik v. Burwell, the Supreme Court has now twice opined on the Affordable Care Act’s contraceptive mandate and its accommodation. However, this term is a misnomer. Congress did not vote on a contraceptive mandate, nor did it create a series of exemptions and accommodations for religious employers. Hobby Lobby and Zubik were both premised on executive actions taken by the Obama administration in light of legislative silence. Far from a historical curiosity, this congressional silence suggests that under the “major question” doctrine, the executive branch lacks the authority to pick and choose which religious groups are exempted from the mandate, and which are merely “accommodated.”

In 2009 and 2010, the issue of abortion funding nearly derailed the Affordable Care Act. Only after President Obama signed an executive order, which Laurence Tribe called a “signing statement on steroids,” did pro-life Democrats led by Rep. Bart Stupak (Mich.) shift their support for the bill. However, as I discuss in Chapter 3 of “Unraveled,” during this time there was a far more significant debate about religious liberty that was never had.

In July 2009, Sen. Barbara Mikulski (D-Md.) introduced the Women’s Health Amendment to the ACA, which would mandate that all large employers provide insurance policies that cover certain “preventive care and screenings” for women. The bill was silent as to what those services were. Several pro-life senators — both Republican and Democratic — asked Mikulski to clarify that “preventive care” would never be interpreted to require payment for abortion services. Although she was content to fill the legislative history with assurances that abortions were not covered, she refused to specify how the provision should be interpreted.

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Sen. Sam Brownback (R-Kan.) was not persuaded. The future governor of Kansas explained, “But, as we all know as legislators, it is one thing to say something on the Senate floor, and it is one thing to have a colloquy, but it is far different to have it written in the base law.” (Chevron skeptics take note). Mikulski once again refused any alterations, nor was there any conscience clause added to this provision.

As expected, the Obama administration interpreted “preventive care” to cover the full-range of FDA-approved forms of birth control, including the emergency contraceptive Plan B. Other than scattered references to “family planning” in the legislative record, the statute was completely silent about creating a mandate for drugs some view as “abortifacients.” Contrast this silence about the “preventive care” mandate with the debate about the individual mandate, for which Congress created a rigorous series of exemptions for conscientious objectors. (26 U.S.C. § 5000A(d)(2)(A)). Certain “religious sect[s] or divisions” as well as members of a “health care sharing ministry” did not have to pay the individual mandate’s penalty. The House recognized that forcing someone to buy insurance might conflict with their religious scruples.

The Women’s Health Amendment was the proverbial dog that didn’t bark. That no one objected to a mandate requiring all employers — with no exceptions for any religious groups — to provide contraceptives was itself evidence that this interpretation was not consistent with congressional intent. But, under the Chevron doctrine, it is a “reasonable” interpretation of a deliberately ambiguous provision. (This episode strengthens the case for the new Chevron skepticism — Congress deliberately passed an ambiguous statute, and refused to clarify it, to avoid the political fallout).

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The decision to interpret “preventive care” in this manner, however, created a significant dilemma for the Obama administration. The statute had no conscience exemption for religious employers to pay for and cover contraceptives that that they consider abortifacients. The Women’s Health Amendment did not even have a carve-out for houses of worship, let alone religious nonprofits. All qualified employers were bound. To resolve this problem, the executive branch created a series of executive workarounds. Initially, a house of worship was exempted only if it “primarily serves persons who share its religious tenets.” A Catholic church that operates a soup kitchen for the entire community, regardless of faith, would not be exempted. After several more rounds of rulemaking, all houses of worship were exempted, but religious nonprofits (such as the Zubik plaintiffs) were not. Instead, they received an “accommodation.” The nonprofit would not have to pay for the coverage, but (depending on how the plan was structured) the payments would be provided through the organization’s policy.

The accommodation was challenged as a violation of the Religious Freedom Restoration Act (RFRA). However, there is an alternate grounds of resolving this case. As I discuss in an amicus brief for Zubik, and my forthcoming article in the Harvard Law Review, the government lacked the interpretive authority to exempt some religious groups and not others. The departments concocted an exemption for houses of worship but not associated religious organizations based on the conclusory assertion that employees of the latter are “less likely” than the former “to share their employer’s . . . faith” (78 Fed. Reg. at 39,887). That Department of Health and Human Services refused to exempt obviously religious nonprofits illustrates how out of its league the government was in evaluating religiosity. Indeed, Congress expressly exempted nonprofits like the Zubik petitioners from the anti-discrimination provisions of Title VII (42 U.S.C. §2000e-1(a)). If they so choose, the nonprofits could hire only people of their own faith. Yet the departments, with no basis, issued a blanket judgment that all religious nonprofits would have employees less likely to share their employers’ religious beliefs. There was not even an option for a case-by-case judgment.

Such haphazard and unauthorized guesswork by anonymous bureaucrats, in the face of long-standing congressional policy to the contrary, cannot justify an infringement of religious freedom. The fact that the rulemaking was premised not on health, labor or financial criteria, but on the departments’ own subjective evaluation about which employees more closely adhere to the religious views of their employers, “confirms that the authority claimed by” the departments “is beyond [their] expertise and incongruous with the [ACA’s] statutory purposes and design” (Gonzales v. Oregon).

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Earnest and profound questions regarding “the mystery of human life” (Planned Parenthood v. Casey) are the quintessential “major questions” the court has held Congress does not intend agencies to resolve absent clear delegation. The departments’ attempt to force religious nonprofits to violate religious teaching regarding the start and nature of human life “lay[s] claim to an extravagant statutory power” affecting fundamental liberty interests — one the ACA simply does not grant (UARG v. EPA). Because Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions” (Whitman v. American Trucking), the departments cannot alter the fundamental aspects of religious accommodation based on the ACA’s purposes. The narrow source of their statutory authority — which offers no religious exemptions for providing “preventive care” — could not hide a mouse, let alone the woolly mammoth that is religious liberty.

On Friday, I will revisit Zubik and explain why the court’s “compromise” decision resolved little. On remand, an application of the “major question” doctrine provides an alternate ground of resolution that avoids the sort of RFRA inquiry that the court already punted on. Later Wednesday, I will turn to “government by blog post.”

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Josh Blackman is a constitutional law professor at the Houston College of Law and the author of “Unraveled: Obamacare, Religious Liberty, and Executive Power” (Cambridge University Press, 2016).

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