A United States Court of Appeals has granted a temporary injunction against the “contraceptive mandate” in favor of an Illinois construction company run by Roman Catholics who have a religious objection to contraceptives.
Key to the decision is an issue we have been following here: causation, which involves an analysis of exactly how the religious conviction is impacted. In this 2-1 decision there was a dissent which followed the analysis of the District Court whose decision was reviewed by Justice Sotomayor:
the firm itself will not be paying directly for contraceptive services. Instead, their company will be required to purchase insurance which covers a wide range of health care services. It will be up to an employee and her physician whether she will avail herself of contraception, and if she does, it will be the insurer, rather than the Kortes, which will be funding those services. In the usual course of events, an employer is not involved in the delivery of medical care to its employee or even aware (by virtue of physician‐patient privilege and statutory privacy protections) of what medical choices the employee is making in consultation with her physician; only the employee, her physician, and the insurer have knowledge of what services are being provided. What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.
While these courts are not using the term “proximate cause,” the reasoning follows that kind of analysis. That is, while one could follow a chain of causation between an action of the owners and the use of contraceptives, that chain is so attenuated by other causes that the dissent doesn’t see the requisite burden on exercise of religion.
Meanwhile, the majority opinion characterizes the burden in a way that shortens the chain of causation:
The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.
So, according to the majority, purchase of the contraception coverage is in itself a burden on religious exercise. Presumably we will at some point see which way the Supreme Court analyzes causation and the burden.
Also key to this decision is that, given the burden on religious exercise, the Obama administration has to show the government can’t ensure contraceptive availability in a way that would avoid the clash. This may point to the possibility of the government directly supplying contraceptives, thus avoiding the conflict between religious conviction and the government’s interest in ensuring the availability of contraceptives.