I'm not sure the complicity arguments *are *the same as to all of the objecting employers -- indeed, they appear to vary widely from case to case. For that and other reasons, I doubt there will *many* for-profit employers that challenge the new accommodation. In the nonprofit context, my sense is that the vast majority of potential objecting organizations were satisfied by the accommodation, even though a small percentage continue to resist. I imagine we'll see similar ratios on the for-profit side. HHS estimates that there are 87 for-profit employers who might be covered (or perhaps a bit more). I'll wager than 70 or more of those will be ok with the accommodation, but that a handful will litigate RFRA claims. I'd be surprised if Hobby Lobby and Conestoga Wood are the lead plaintiffs again, mostly because (as the Alito opinion reflects) the Justices were led to believe they'd be ok with the accommodation.
On Fri, Jul 10, 2015 at 6:20 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > We're discussing the nonprofits, but, as Nelson pointed out, these regs > accommodate some objecting for-profits, including Hobby Lobby itself. I > know we have Becket Fund lawyers on the list, and I do not expect them to > disclose information about their clients' plans. But I have been wondering > since June 2014 whether Hobby Lobby and the Green family would accept and > cooperate with this accommodation, or whether they will sue under RFRA to > enjoin its application to them. If this arrangement does not satisfy some > of the nonprofit objectors, why would it satisfy the for-profits - the > complicity arguments are the same. We can all speculate on the likelihood > of success for the for-profits if they litigate this, but no one can be > sure of the ultimate outcome. The argument that "the government can just > provide the contraceptives itself" is still out there as a least > restrictive alternative, for nonprofits and profits alike. > > On Fri, Jul 10, 2015 at 6:03 PM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > >> As I have suggested, It isn't a question of identifying the insurer or >> administrator in general (such as, for example, in pleadings that allege >> that the HHS regs would require the plaintiff to arrange for coverage >> through the named insurer or administrator). >> >> Rather what may be objectionable is the requirement to do so specifically >> so the insurer or administrator can be forced to provide the drugs and >> services. (I don't know whether any of the plaintiffs have made that >> argument.) >> >> It is interesting to note that, at least in the order I found for the >> Wheaton College case, the Supreme Court has not seemed to order objectors >> to include insurer or administrator contact information with their >> objections: >> >> WHEATON COLLEGE v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN >> SERVICES, ET AL. >> >> ON APPLICATION FOR INJUNCTION [July 3, 2014] >> >> The application for an injunction having been submitted to JUSTICE KAGAN and >> by her referred to the Court, the Court orders: If the applicant informs >> the Secretary of Health and Human Services in writing that it is a >> nonprofit organization that holds itself out as religious and has religious >> objections to providing coverage for contraceptive services, the >> respondents are enjoined from enforcing against the applicant the >> challenged provisions of the Patient Protection and Affordable Care Act and >> related regulations pending final disposition of appellate review. ... >> >> Mark >> >> Sent from my iPad >> >> On Jul 10, 2015, at 2:39 PM, "Marty Lederman" <lederman.ma...@gmail.com> >> wrote: >> >> The notice requires the employer to identify the insurer or the >> third-party administrator of the plan (e.g., Aetna), so that the government >> can then take the steps necessary to have that entity create a new, >> contraceptive-specific plan. In the cases currently being litigated, the >> objection of the employers is *not *to this identification requirement >> -- each and every one of the employers has, as far as I know, already >> identified the insurer or the TPA in the body of its complaint. >> >> On Fri, Jul 10, 2015 at 5:20 PM, Scarberry, Mark < >> mark.scarbe...@pepperdine.edu> wrote: >> >>> I hope we will not get too personally dismissive in this discussion. >>> >>> I suspect -- though I haven't recently been following this matter >>> closely -- that a possible basis for objecting has to do with the >>> information that the religious organizations must supply in connection with >>> their request for / demand for / notice of exemption. If they must, in this >>> particular context, as opposed to the general context of the ACA, provide >>> contact information for plan administrators or others -- specifically so >>> the govt can force those others to provide these drugs and services -- then >>> their providing of that information is a causal link that they may consider >>> to be too direct. (Whew! Sorry for the long sentence.) >>> >>> The drugs and services can't be provided under the accommodation unless >>> the govt knows of the objection. I don't see how an objector can resist an >>> obligation simply to notify the govt of the objection. But if the other >>> information is available or could be made available in a way that isn't so >>> closely related to the provision of the goods and services, then it would >>> make sense for the govt to get the information another way. From the nuns' >>> standpoint, this could be like a conscientious objector to war having to >>> identify someone else who will fight in his place. >>> >>> How much information must these groups supply under the accommodations >>> that courts have ordered? I don't recall whether they must identify, as >>> part of their claim for objection, a plan administrator or other person who >>> can be forced to pay for the drugs and services. Does the govt generally >>> require employers to provide this contact information to confirm that >>> health insurance (with or without these drugs and services) is in place? If >>> so, the govt could just match up the records with the objections. >>> >>> Marty will know, as will the Becket Fund lawyers. >>> >>> Mark >>> >>> Mark S. Scarberry >>> Pepperdine University School of Law >>> >>> >>> Sent from my iPad >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> >> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" ( Wm. B. Eerdmans Pub. Co., 2014)) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
