In the new term just begun at the Supreme Court, the justices are very likely to revisit the status of the infamous “HHS mandate” that was at the center of the Hobby Lobby case. Even the Obama administration has urged the Supreme Court to take one of the cases decided by the federal appeals courts, though the Justice Department seems strangely apprehensive about squaring off against the Little Sisters of the Poor. But while HHS has been winning most of the cases below, the litigation has prompted the sharpening of the argument that should win the day for religious freedom.

Readers will recall that the mandate, decreed by the Department of Health and Human Services as a regulation implementing the Affordable Care Act, requires the vast majority of employers of more than fifty persons to provide insurance coverage for contraceptive drugs and devices—including known abortifacients—under the rubric of “preventive health care,” at no cost to the employee. Certain narrowly defined “religious employers”—essentially houses of worship—are fully exempted from the mandate.

Religiously affiliated institutions beyond that narrow category—such as Wheaton College, University of Notre Dame, the Little Sisters—were offered an “accommodation” purporting to disconnect the coverage from the employer. But these and other employers have been in protracted litigation with HHS since before Hobby Lobby was decided, objecting that their relationships with their employees and their insurers trigger the contraceptive coverage; no paper-shuffling pretense of their non-complicity can relieve their consciences of the burden the government has imposed.

In its decision in favor of the Hobby Lobby and Conestoga Wood Products companies, the Court held that because the HHS mandate imposed a “substantial burden” on the owners’ exercise of their religion by requiring them to violate their consciences or face crippling fines, the government must show a “compelling interest” in enforcing its policy and do so by the “least restrictive means” possible.

As Justice Samuel Alito explained, it was not necessary for the Court to settle the question whether access to contraception constitutes a compelling public policy interest, because the government had clearly not chosen the least restrictive means of providing it. Alito noted that the government could directly provide the disputed services itself rather than requiring employers to take administrative and financial responsibility for them. Alternatively, it could extend to these private corporations the same “accommodation” it was offering nonprofit entities with religious affiliations.

Under that arrangement, which Alito offered only as a hypothetical without blessing it as valid under the Religious Freedom Restoration Act (RFRA), the government claims that qualifying employers with religious objections do not pay for, contract for, or involve themselves in any way in providing the “preventive services” on which HHS insists, but their insured employees and dependents nonetheless receive the services from the employer’s health insurance provider (or in the case of self-insuring employers, their “third-party administrator” or “TPA”).

Is the Government’s Accommodation Enough?

Seven federal circuit courts of appeals (the Second, Third, Fifth, Sixth, Seventh, Tenth, and District of Columbia) have ruled in favor of the HHS “accommodation” for religious-affiliate nonprofits, turning away challenges to it in the name of religious freedom. But on September 17, a three-judge panel of the Eighth Circuit, in a case involving Heartland Christian College and CNS International Ministries, unanimously held that the HHS “accommodation” was not good enough to meet the standards of RFRA. This sets up a conflict among the circuit courts that the Supreme Court will have to resolve.

Why have claimants such as the Little Sisters and Notre Dame lost their appeals in so many courts? The judges who composed the majority on these circuit panels were persuaded by the government’s argument that these religious nonprofits experienced no “substantial burden” on the exercise of their consciences. In the absence of a substantial burden, there was no need to go on to examine whether the government is pursuing a compelling interest in the least restrictive manner.

The reasoning was as follows: because the obligation of the relevant health insurer or TPA to provide the contraceptive coverage is directly imposed by the health care act and HHS regulations, the employer who is in a relationship with both employee and insurer is not involved in the transaction at all, beyond the mere delivery of information to the provider (or to the government) that it has a religious objection, and who its employees are. Therefore, the refusal of the Little Sisters even to “fill out a form” or to write a simple letter to HHS appears to be an obstinate refusal to do an utterly harmless act, even from the Sisters’ own perspective. Or so the government claims, and so many judges have concluded. In the words of Judge Richard Posner of the Seventh Circuit during a 2014 oral argument in Notre Dame’s case, “it seems so trivial.”

There are two possible answers to this argument. One is to say, as have many advocates (and not a few dissenting judges), that judges have no business second-guessing the sincere judgment of a religiously informed conscience that a required act is morally wrong, because of its complicity or involvement in evils committed by others. That draws the judiciary into standing in the objecting parties’ shoes, doing theology in their stead and telling them they’ve gotten their own religious scruples wrong.

This is the argument that finally won the day in the Eighth Circuit. Judge Roger Wollman laid all his emphasis on the sincerity of the plaintiffs’ claim that any action on their part that led to the use of medicines or procedures they believe to be immoral—even if that action were simply filling out a form—“would violate their sincerely held religious beliefs.” It did not matter, Judge Wollman went on, whether the employers “have correctly interpreted the law”; the burden on conscience is real because the religious belief is real, and the threatened punishment so draconian that the burden is clearly substantial. He went on to hold that less restrictive means are available for the government to achieve its object, such as an even simpler notification process (improvised by a Supreme Court order in the ongoing Wheaton College case) in which the employer simply tells the government to do all the work of contacting both the provider and the affected employees.

A Better Approach: Cutting Through the Legalese

Judge Wollman’s approach—echoed in various dissenting opinions elsewhere—may be good enough as far as it goes. But far superior is the second argument, hinted by some judges but fully developed in a Seventh Circuit dissenting opinion in the September 4 decision of Grace Schools v. Burwell. The government won this case too, but Judge Daniel Manion’s devastating dissent meets the administration’s argument head on, without relying entirely on the claim that religious objections must be heeded even when they are arguably wrong about the way the law works.

Judge Manion understands that the strength of the HHS policy’s defenders lies in this assertion that “accommodated” religious nonprofits are wholly relieved of any role in the provision of contraceptive and abortifacient services to their employees. For judges to say that this is so as a matter of law may even supply a trump card against sincere religious claims, for it is an ordinary part of a judge’s duty to give a binding interpretation of a law’s meaning. As Manion puts it, referring to his two colleagues in the majority as “the court”:

Had the nonprofits said that they sincerely believe that the HHS accommodation violates their religion and left it at that, perhaps the injunction [of the district court below, in their favor] would remain in place because there would be nothing for the court to attack. But since the nonprofits said that they sincerely believe that the accommodation violates their religion because the accommodation makes them complicit in the provision of contraceptive services, the court has attacked their claim that the law makes them complicit. The court is right that it is “not required to defer to the plaintiffs’ beliefs about the operation of the law.” Nevertheless, it is the nonprofits that are right about the operation of the law, not the court.

From this point on, Judge Manion’s opinion cuts through the fog of obfuscation emitted by the Obama administration and accepted by a dismaying number of judges. Is it really true that the law independently imposes the contraceptive mandate on insurers and TPAs without implicating the employers of those who receive the services? Then why does the mandate impose the requirement “only on the insurers and TPAs the nonprofits have hired?” he asks. How can the notification of the employer, to either the provider or the government, be called “opting out” of the HHS mandate, when it is precisely the act by which nonprofits and their employees are “opted in,” and by which the insurers’ or TPAs’ legal obligations to these employees are triggered?

For the TPAs, Manion notes, the act the government requires of the employer “makes them legal instruments under which the nonprofit’s health plan is operated.” For a more conventional health insurance provider, “but for the nonprofit’s hiring of the insurer, and the nonprofit’s continuing contractual relationship with it,” there would be no obligation placed on the insurer to provide or cover the costs of a service that is “free” to the employees with (putatively) no expense passed on to the employer.

And how can the responsible relation of the nonprofit to the entire transaction be considered severed, when “the only way an employee receives coverage for contraceptive services under the accommodation is to enroll in the objecting nonprofit’s health plan”? The moral entanglement of the objecting nonprofits in the very acts to which they object is complete, all the way down, for “the offensive provision is inseparably imbedded in the nonprofits’ health plan.” Even the matter of who is really paying for the services is not so easily pushed aside, says Judge Manion, for “the nonprofits’ premiums are the only source of funding,” at least in the case of conventional insurers.

In short, “The HHS accommodation is a purposely complicated act of bureaucratic legalese and accounting tricks that enables the government to claim that the objecting nonprofits have nothing to do with the provision of contraceptive services.” But contrary to that claim, Judge Manion says, “It is the nonprofits which understand the operation of the HHS accommodation, not the court, and we must accept their sincere belief that it violates their religion.” Indeed, in order to side with the government, the majority of the Seventh Circuit panel, says Manion, “uses a caricature of the HHS accommodation to avoid accepting the nonprofits’ sincerely held religious belief,” as RFRA requires and as the Supreme Court insisted in Hobby Lobby.

The Obvious Solution

Having established that the sincere religious objection of the nonprofits must be accepted, and that it objects to a substantial burden because it is based on the truth about how the law functions, Judge Manion then considers the compelling interest claim of the government. Here he relies in part on the groundbreaking work of Professor Helen Alvaré, who has shown that the government’s own expert medical consultants failed to demonstrate any significant promise of beneficial health effects accruing from the HHS mandate.

But even if a compelling interest were shown, there are obviously less restrictive means of advancing it. The government could run the contraceptive services program itself for the individuals it desires to reach, possibly by employing the health-insurance exchanges for the purpose. And it could simply then offer the objecting nonprofits the same full exemption from involvement in the program that it has offered for “religious employers” in the narrow sense. Since “the so-called accommodation is nothing but a mirage,” Manion says, such a full exemption is “the obvious solution.”

Judge Manion does not draw the further—equally obvious—conclusion concerning all objecting for-profit employers like Hobby Lobby, which are now subject to this same “so-called accommodation.” They are every bit as entitled, under RFRA, to object to the terms of this fraudulent deal, and every bit as strongly positioned to win a new victory over the Obama administration’s coercion of their consciences. Judge Wollman and his Eighth Circuit colleagues have created the opportunity for religious freedom to win again in the Supreme Court, but it is Judge Manion who supplies the arguments that should triumph, for everyone’s freedom.