An argument that seems to be gaining more and more currency among liberal supporters of President Obama’s contraception “preventive care” mandate (“HHS mandate”) is that this is no different from the policy of the federal government under George W. Bush. Obama laid the groundwork for the argument in the speech he gave at Friday’s press conference: “Religious liberty will be protected and a law that requires free preventive care will not discriminate against women” (emphasis added).

And then the precise contours of argument came in an article in the far-left magazine Mother Jones, which purports to explain the scope of a Clinton-era Equal Employment Opportunity Commission (“EEOC”) opinion letter from 2000 which found in the course of an enforcement action that “exclusion of prescription contraceptives violates Title VII [of the Civil Rights Act of 1964], as amended by the Pregnancy Discrimination Act.” The article goes on to explain how a federal district court in western Washington agreed with the reasoning of that opinion letter in its ruling on the enforcement action brought.

From this we are meant to believe that for the last decade Catholic employers have had to provide contraceptive coverage as a matter of law and thus the new HHS mandate is nothing new. But this is not the case as a matter of law and is not reassuring to Catholics as a matter of policy.

In the Year 2000

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The opinion letter was an interpretation of Title VII (which forbids sex discrimination) as amended by the 1978 Pregnancy Discrimination Act (“PDA”). The Commission found, in the case of two nurses denied oral and injected contraceptive coverage (desired both for contraceptive and medical reasons), that “the PDA covers contraception based on its plain language, the Supreme Court’s interpretation of the statute, and Congress’ clearly expressed legislative intent.”

When that case, Erickson v. Bartell Drug Co., went to court, a federal court in the Western District of Washington agreed with EEOC, finding:

When an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes . . . . In light of the fact that prescription contraceptives are used only by women, [Defendant’s] choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory.

The force of this decision only applied to the parties at bar. A decision by a district court on a matter of law is not binding authority even as to other sittings of the same district court reviewing the same question of law. So while the Erickson court applied the reasoning of the opinion letter against the defendant Bartell, the court lacked the authority to do any more than that.

Yet, according to Mother Jones, “Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained.” This both (1) understates the subsequent negative treatment given to Erickson and the opinion letter, and (2) incorrectly ascribes by implication the force of law to the opinion letter. Between 2000 and 2007 the Erickson decision was found to be persuasive in some federal district courts and unpersuasive in others.  However in 2007 a panel of the 8th Circuit Court of Appeals, in In re Union Pacific Railroad Employment Practices Litigation, refused to apply its holding and flatly disputed the reasoning of the opinion letter. Since then, to my knowledge, no district court has adapted the Erickson holding.

“Lack[s] the force of law”

According to Judge Raymond Gruender, writing for the majority in Union Pacific, by 2007 neither the Supreme Court nor the circuits had conclusively held whether or not the PDA applied to contraception. In a case of first impression before any federal circuit, Judge Gruender held that “the PDA does not require coverage of contraception because contraception is not ‘related to’ pregnancy for PDA purposes and is gender-neutral.” He cited Erickson to show that Congress—in passing the PDA—had “no specific intent regarding coverage for prescription contraceptives” and thus concluded that “silence by Congress on the issue of contraception cannot be interpreted to expand the PDA to cover contraception.”

The court went on to say that it was “not persuaded” by the opinion letter. Judge Gruender noted the—unquestionably true—fact that an “agency’s interpretation that is found in an opinion letter, policy statement, agency manual or enforcement guideline ‘lack[s] the force of law’ and is not entitled to [administrative law] deference.” He went on to explain:

This EEOC decision is similar to a policy statement or enforcement guideline, and we respect such interpretations “only to the extent that those interpretations have the ‘power to persuade.’”. . . Since Congress did not give the EEOC rule-making authority, the amount of deference we give to this decision “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

As a persuasive argument—and not binding law—the opinion letter did not pass muster. For one thing, the matter addressed by the opinion letter was distinguishable from the facts in Union Pacific.

Furthermore, the opinion letter “compares prescription contraception to the broadest possible spectrum of other preventive treatments and services without citing a persuasive basis for doing so.” Note that this is what the HHS mandate does: It equates contraception with “preventative care” broadly.  This statement of policy is at the heart of the argument that the HHS mandate and the opinion letter are functionally equivalent and the court found the argument both unsupported and unpersuasive.

Judge Gruender lastly noted, “the EEOC did not issue any guidance on the issue of coverage of prescription contraception until 22 years after the enactment of the PDA. The delay brings into question the consistency and persuasiveness of the EEOC’s position.”

Accordingly the lower court’s judgment in favor of the plaintiffs was reversed and remanded.

Unlike Erickson, Union Pacific is binding precedent on federal courts within the territorial jurisdiction of the 8th Circuit. This was the first circuit court decision on the matter at issue in the opinion letter, and the court found it clearly unpersuasive. It also articulates that the opinion letter is just that: an opinion. The result is that in seven states, as a matter of law, Title VII as amended by the PDA does not include contraceptives.

If a tree falls in the forest

So while the opinion letter is not law de jure—and not even valid as an interpretation of the law in seven states—perhaps, it might be contended, it is de facto law in some sense. After all, following the opinion letter, 90 percent of employers adopted contraceptive coverage. However, to prove this—in particular as it applies to Catholic institutions—Obama administration supporters will need better evidence than general coverage statistics. For one thing, it’s entirely possible that this rate would have been achieved independent of government meddling.

The Mother Jones piece references the opinion letter’s use in “negotiating with various employers” but does not state how many of them were Catholic. And even if they were, this simply means that the opinion letter was deployed as a threat against counterparties. We aren’t Vikings; threats ought not be confused with law.

If the opinion letter truly bound religious institutions under the Bush administration there would be a long list of letter rulings, enforcement actions, and successful litigation against religious hospitals and schools. Where are they? Erickson involved a secular employer—as did subsequent cases dealing with the PDA-and-contraception question. The Mother Jones article makes a vague reference to DePaul University capitulating to an “EEOC complaint”—although since 2003 Illinois had its own expansive contraception mandate, so without knowing more it is impossible to say who, exactly, coerced DePaul into capitulating. Also mentioned is a 2009 EEOC complaint against Belmont Abbey College, which had removed coverage of abortion, contraception, and sterilization from the school’s employee-insurance plan. But Belmont Abbey was informed of that enforcement action in the summer of 2009, following a March 2009 “Decision and Notice of Rights” letter from EEOC indicating that they were ending the investigation against the school.

Did President Obama’s EEOC suddenly rediscover the long-established and unquestioned Bush EEOC policy—about which the Bush administration, apparently, had forgotten? Or did EEOC just reverse itself based on the political preferences of the new administration, thus further “bring[ing] into question the consistency and persuasiveness of the EEOC’s position”?

Apparently Catholics are being ridiculous for caring about the new HHS mandate. For the last twelve years, we are told, the federal government has intermittently harried Catholic institutions about the contraception question on the basis of an executive musing that is of dubious legality. This alone should counsel Catholics. Even if the HHS contraception mandate were just “more of the same”—which it is not—it would be more of the same federal bullying and more affronts to religious liberty. The difference is that now it would actually have the force of law behind it.