Tuesday, July 1, 2014

Preliminary Thoughts on the Hobby Lobby Briefs

Several months ago I started reading the parties' briefs in the Hobby Lobby case. Yesterday, in a 5-4 split, the Supreme Court held the contraception mandate in the Affordable Care act (commonly known as Obamacare) violates the Religious Freedom Restoration Act.

Paul Clement
Paul Clement represented Hobby Lobby (and several similarly situated parties), and the Department of Health and Human Services (HHS) was represented by Donald Verrilli and the DOJ.

The dichotomy of the briefs is an interesting study in persuasive tactics. I'm considering a more thorough article on these briefs, but in the interest of timeliness, here's some food for thought:

Introductions/Issue Framing 

From the beginning, the parties make clear the issues and topics they want the reader to focus on. HHS's brief begins: "Most Americans with private health coverage obtain it through an employer-sponsored group health plan." HHS goes on to talk about how health insurance is funded in employer-sponsored plans, the purpose of the Affordable Care Act, the use of preventative tools (including cholesterol screening and vaccinations) to improve health, and the specific preventative care recommended by medical professionals for  women. The HHS doesn't even mention the word "contraceptive" (or any synonym) until the 6th page of its brief. 

I think this is intentional--HHS doesn't want this case to be about contraceptives--it wants the case to be about the importance of preventative care. After all, if preventative care, including contraceptives, is a compelling government interest, HHS is halfway to proving the preventative care requirements (including contraceptives) pass strict scrutiny.  

Hobby Lobby, on the other, holds nothing back from the first sentence: "On the merits, this is one of the most straight-forward violations of the Religious Freedom Restoration Act this Court is likely to see. Respondents' religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception. " 

Hobby Lobby, of course, wants the case to be about religious freedom and contraceptive drugs--framing the issues in that way forces the Court to consider the case in terms of religious freedom and the distinctive role of contraceptives (as distinct from other types of preventative care) in health care.

Factual Background

Hobby Lobby's factual background is, in my mind, quite persuasive. Clement does a masterful job of setting the scene--he starts by describing how the Greens built Hobby Lobby from a
single store into a national chain and how it remains a closely held corporation, with Mr. Green serving as CEO, one son as President, a daughter as Vice President, and another son as Vice CEO.

Clement then outlines the ways the Greens' faith guides Hobby Lobby--trustees sign documents promising to honor God and use
the company's assets to support Christian ministries, the stores are closed on Sundays (at a cost of millions of dollars a year), the company runs full-page ads in hundreds of newspapers on Christian holidays inviting non-believers to "know Jesus," the stores play Christian music, and employees have free access to ministers and spiritual counseling. According to Clement, Hobby Lobby's self-funded health insurance plan is impacted by the Greens' religious beliefs in the same way that Hobby Lobby's other activities are.

In light of this background, Clement drives his most point home: "Hobby Lobby's religious beliefs will not allow [it] to do precisely what the contraceptive-coverage mandate demands - namely, provide in Hobby Lobby's health plan the four objectionable contraceptive methods. "

HHS's brief doesn't have a separate "Factual Background" section, but HHS does spend quite a bit of time explaining the "factual background" of the contraceptive mandate, relying heavily on the opinions of experts to justify its necessity and inclusion in the
Affordable Care Act: 
"Because [HHS] did not have such comprehensive guidelines for preventive services for women, HHS requested that the Institute of Medicine develop recommendations for it...To formulate recommendations, the Institute convened a group of experts, 'including specialists in disease prevention, women's health issues, adolescent health issues, and evidence-based guidelines.'...Based on the Institute's review of the evidence, it recommended a number of preventive services for women, such as screening for gestational diabetes for pregnant women, screening and counseling for domestic violence, and at least one well-woman preventive care  visit a year. The Institute also recommended access to the 'full range' of 'contraceptive methods' approved by the Food and Drug Administration (FDA), as well as sterilization procedures and patient education and counseling for all women with reproductive capacity."

Unsurprisingly, HHS has a more difficult time fashioning a good story from its facts--but it does an admirable job at making the contraceptive mandate fight about the health needs of women.

Summaries of the Argument

The parties also employ different tactics in their summaries of the argument. In its brief, HHS's summaries are numbered, making each argument appear distinct from the other--(1) Hobby Lobby isn't a person under the RFRA; (2) The Greens cannot challenge the mandate in their individual capacities; (3) the contraception mandate doesn't constitute a substantial burden; and (4) the contraception mandate is supported by a compelling government interest and is the least restrictive means to further that interest.

Hobby Lobby, on the other hand, uses narrative to summarize its arguments. Clements starts by explaining the definition of "person" under the RFRA and outlining the reasons Hobby Lobby should be considered a person. Then, Clement discusses the applicable level of scrutiny--strict scrutiny--and lists the reasons the mandate substantially burdens the rights of Hobby Lobby and the Greens.

Photo courtesy of
King James Bible Online
Finally, Clement segues into the related arguments that the mandate is not supported by compelling government interests and that the mandate is not the least restrictive means of satisfying any compelling interest (if there were one).

The result: HHS's summary feels a little sterile and disjointed, while Hobby Lobby's summary flows, and the pieces appear to fit together logically. But again, I think this is intentional. HHS wants to give the Court options (i.e. several grounds on which the Court could uphold the law) whereas Hobby Lobby wants the Court to see HHS's arguments as all interrelated (and all wrong).

HHS's brief: 2014 WL 173486 (Jan. 10, 2014)
Hobby Lobby's brief: 2014 WL 546899 (Feb 10, 2014)

The opinion can be found here.

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