Kong v. Scully

Related Cases

RAWLINSON, Circuit Judge,

concurring:

I concur in the result. I write separately to emphasize that, in my view, the Eighth Circuit’s analysis in Children’s Healthcare v. Min De Parle, 212 F.3d 1084 (8th Cir.2000), should carry the day.

In Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987), the United States Supreme Court recognized that “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”

As the Eighth Circuit noted, the Medicare provisions, without any accommodation to the beliefs of the Christian Scientists, would significantly burden their religious practice. For example, Medicare’s requirement that a doctor certify eligibility for hospice care is the antithesis of the Christian Scientists’ fundamental beliefs, which eschew any medical treatment in the conventional sense. This and other medically based provisions impose a significant burden on the Christian Scientists’ exercise of their religion.

The fact that, so far, only Christian Scientist sanitaria qualify as RNMHCIs is not dispositive. Nothing prevents other groups from qualifying for and taking advantage of the same Medicare provisions that benefit the Christian Scientists. See Min De Parle, 212 F.3d at 1091.

§ 4454 has the valid secular purpose of extending health care coverage to the optimum number of people, while at. the same time undershoring the Medicare and Medicaid programs. Accordingly, the legislation is not subject to strict scrutiny. See id. at 1092.

If not subject to strict scrutiny, § 4454 must pass the three-part test articulated by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105 (1971). That test results in clearance under the Establishment Clause if the law: 1) has a secular purpose; 2) has a primary effect of neither advancing nor prohibiting religion; and 3) “does not foster excessive government entanglement with religion.” Min De Parle, 212 F.3d at 1093 (citation omitted).

As discussed above, the secular purpose underlying § 4454 is to extend health coverage to a broader range of people, while bolstering the Medicare and Medicaid programs. At the same time, the government is also entitled to take note of and alleviate the burden that religious entities sustain as a result of the government’s exercise of its power. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 705, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994); see also Amos, 483 U.S. at 338, 107 S.Ct. 2862.

As the Eighth Circuit observed in Min De Parle: “[ajbsent § 4454, the Medicare and Medicaid Acts place individuals who hold religious objections to medical care in *1148a situation similar to that contemplated by the Sherbert line of cases. They are forced to choose between adhering to their religious beliefs and foregoing all government health care benefits, or violating their religious convictions and receiving the medical care ...” Min De Parle, 212 F.3d at 1093. Removal of the burden of the Hobson’s choice serves a legitimate secular purpose. See id. at 1092.

The law’s primary effect is to neither advance nor inhibit religion. § 4544 does not impose a substantial burden on nonbe-neficiaries or exclusively benefit religious believers. See Texas Monthly Inc. v. Bullock, 489 U.S. 1, 15, 109 S.Ct. 890, 103 L.Ed.2d 1 (1989). § 4544 simply does not foster excessive government entanglement with religion. Although qualified RNHCIs make an initial recommendation regarding eligibility for Medicare and/or Medicaid coverage, as with other health care providers, the government makes the final decision regarding a patient’s entitlement to Medicare or Medicaid benefits. See 42 U.S.C. §§ 1395x (ss)(l)(H)-(J); 1395x (ss)(3)(B)(ii). The government’s involvement is no more, no less than with any other health care provider, and is by no means excessively entangled.

I am persuaded by the rationale set forth in the Eighth Circuit’s Min De Parle decision that § 4544 is not subject to strict scrutiny and satisfies the Lemon test. Therefore, I concur in the majority’s conclusion that the district court’s ruling should be AFFIRMED.