Reasonable “Nun Payment” in Zubik v. Burwell; or, How Nuns and the “Shabbas Gov’t” Can Meet Everyone’s Needs

I. Zubik’s “New Order” and Its Problems

The present author had considered writing an article on how the Zubik v. Burwelloral argument divided on some unimaginative or stereotypical lines: the four aging observant-Catholic males on one side; and three women (some of them youngish), three likely secularists, and one not-necessarily-observant Catholic, on the other side. Then the unexpected March 29 Order came along, and things seemed interesting again.

The Order tries to reach a “compromise” between both sides, but one way it fails is in not accounting for Petitioners’ desire not even to contract with insurers providing contraceptives to Petitioners’ female employees or students. This is understandable, especially in light of, e.g., activists’ attempts to get schools or other institutions to divest from apartheid South Africa in the 1980’s, and from fossil-fuel companies at present. Sometimes people feel morally defiled by even contracting with perceived evildoers, even if one oneself is not distributing contraceptives or practicing apartheid.

Also, re the ideas in the new Order, see id., insurers would be still seemingly be using information garnered from Petitioners’ employees and insurance plan, in order to distribute the contraceptives. Petitioners dislike this, and so might some insurers who themselves may be religious and unwilling to distribute contraceptives. But how could the employees be identified and served, without that information?

What is needed is not for the particular insurers of Petitioners to distribute contraceptives. All that is needed is for somebody to take the vital identifying information (and relevant medical information, e.g., employee Jane Jones has a fatal allergy to Contraceptive X and needs an alternative) and provide care, even if the somebody is not Petitioners’ own insurers.

II. Keeping Employees in the Loop, Not a Noose: or, Looking Critically at the Government’s Contraceptive “Nudge”

Part of the “care”, by the way, is not only the actual contraceptives, but keeping the employees informed about how to get them as part of an easy, “seamless” experience, which includes continuing information on contraceptive issues, such as medical updates. The Government puts this in a somewhat creepy way, by citing a conformist-sounding “nudge” as a reason for the “seamless coverage”:

[S]ee generally Richard H. Thaler & Cass R. Sunstein, Nudge 7-8 (2008) (observing that modern social science demonstrates that “people have a strong tendency to go along with the status quo or default option”).

ZubikU.S. Merits Br. at 75. That is, the Government believes that putting the women into the habit of easily attaining contraceptives will be good for both women and the public; however, this sounds a little bit like “Pavlovian conditioning”. Cf., e.g., Zager and Evans, In the Year 2525: “…In the year 3535…./Everything you think, do and say/Is in the pill you took today…./In the year 6565/You won’t need no husband, won’t need no wife/You’ll pick your son, pick your daughter too/From the bottom of a long glass tube”. Id.

However, even if the “nudging” seems creepy, it is true that the women may still want to receive the information, even if they decide not to contracept. This is one problem with Edward Zelinsky’s suggestion that Petitioners provide HSA’s or HRA’s to the employees instead of contraceptives. The HSA/HRA would provide the money, so that employees could buy the contraceptive (or something else), and Petitioners would be untainted.

But the informational web (hopefully just keeping women in the loop, not being a noose of conformist pressure to contracept) by which the Government keeps women informed of their contraceptive options, and the ease of not having to sign up for a new contraceptive program, are not fulfilled by the HSA/HRA solution on its own. (Or by similar solutions, such as just paying female employees enough extra wages straight-up, say, enough to buy an IUD in the first year of employment, then a smaller wage increase for subsequent years.)

III. The Government as “Shabbas Goy” in Zubik: Contacting Employees, Providing Care, and Fining Petitioners for the Amount Incurred

Thus, an optimal solution might be for the Government to handle everything, but not to foist the cost onto the taxpayer, but onto the Petitioners themselves. The Government handling everything resembles the Jewish concept of the “shabbas goy”, i.e., a Gentile who does certain tasks for Jews on the Sabbath, when those tasks are forbidden to Jews. The Zubik respondents-side amicus brief by Norman Dorsen et al. mentions the “shabbas goy” concept, id. at 30 & n.14, 31 (as “Shabbos goy”); and the present author has long had similar ideas re the Hobby Lobby and Zubik cases.

That is, the Government would garner the relevant information from Petitioners or their insurers, or some other source that might have it. This might be done in various forms, e.g., in a compulsory fashion, say, a lawsuit or other legal claim for the information, maybe in the form of a sex-discrimination claim re Petitioners’ depriving their female employees of medical care. (In the course of lower-court litigation, Petitioners had to reveal various information they might not have without being in litigation.) By the way, if a female employee opposes contraception, perhaps she should have the right to opt out of providing her personal information, so that the Government will not bother her further with unwanted “nudges” about contraception.

After having obtained the information—which may constitute the “settlement” of a suit—, the Government would use it to contact the women and set up information channels to them. The Government, not Petitioners’ insurers, would also provide the contraceptives to those employees who wanted them, whether by “tweaking” Title X or otherwise. And Petitioners would be fined for whatever all this work by the Government cost. (If the Government wanted to fine somewhat lower, they could; but the upper cap on the fine would be the cost of the work the Government did to give women information and contraceptives.)

This idea would solve all the problems in Zubik, basically: Petitioners or their insurers would not provide contraceptives, or willingly give up information about the female employees/students (Petitioners/insurers could claim the information was gotten elsewhere, or forced out of them by the Government), nor contract with any private contraceptive provider; female employees would get contraceptive information and contraceptives (except those who did not want them); and taxpayers would not pay anything, as Petitioners would be fined in the amount that the Government’s efforts cost. (And such a fine may be far smaller than a “substantial burden” that would trigger RFRA in the first place.)

Too, there could be variations of this which interface with proposals like the “HSA/HRA” option, or the “higher wages” option. E.g., the Government would get the employees’ information, and keep them in the contraceptive-informational loop; but the HSA, HRA, or higher wages would let the employees purchase contraceptives themselves, using the Government-sent information.

If the procedures just outlined may seem “convoluted”, they may be no more so than religious Jews having Gentiles perform certain tasks for them on the Sabbath. Religious people may have high standards to fulfill, and fulfilling them may take some effort.

IV. “Nun Payment”, Not Non-Payment, by Zubik Petitioners

But another angle on religion is that, as the current “Best Picture” film Spotlight stridently notes, religious people are worldly and human indeed. There are nuns like Mother Teresa, and then there are nuns like recently-infamous Pennsylvania nun and shoplifter Sister Agnes Pennino. Nuns being imperfect, then, perhaps the signs nuns carried outside the Zubik oral argument re the HHS mandate, saying “I’ll Have Nun of It”, could just as easily have been carried by their female employees, saying that they’d have “nun” of being denied their contraceptives.

So, nunnery and punnery aside: if the Court goes beyond even what is in its recent Order, and, as per the present essay, more fully recognizes the humanity of both the nuns and their secular sisters, their female employees, a close-to-ideal balance of religious freedom and freedom from religious oppression can be reached. The nuns seek total non-payment of legal penalties; but instead, maybe nuns’ payments, in a moderate, Court-mandated degree, to the employees they may damage, or to the Government helping those employees—along with the Government's keeping those women informed about their contraceptive options—, are the road to salvation in Zubik.

(Cross-posted, with edits, to Boyle’s Laws)