Four deep-seated American attitudes were on display Wednesday in the Supreme Court chamber as the justices heard a new challenge to the Affordable Care Act, Zubik v. Burwell, which once again pitted health insurance for birth control against religious freedoms:
(1) The ACA, an unprecedented piece of socialistic overreach, is slowly transforming the republic into a bleak totalitarian dystopia.
(2) Any public policy that offends a “traditional” American religious sensibility—mostly meaning certain strains of conservative Christianity—is inherently suspect.
(3) Women’s health care is a dangerous and suspect thing because it may involve sex and thus fertility and thus contraception and thus maybe even abortions.
(4) Medical care can be divided into “women’s issues” and “the important areas,” which center on the needs of men. Thus, a health-insurance policy that explicitly excludes the needs of women, or remits them to a separate status, is not an anomaly; it is normal.
This time, it isn’t a big corporation like Hobby Lobby seeking an exemption to covering birth control. It is a group of religious nonprofits claiming that filing the one-page form to enshrine their objection and get a birth-control accommodation “facilitates” a sin—making them participants in the sin. The feelings in the room were so intense that Paul Clement, one of the most equable and careful appellate advocates of his generation, actually claimed that that requiring his clients—the Little Sisters of the Poor, a Catholic nonprofit that provides elder-care services—to certify their objection to providing contraceptive coverage was the same as if the government came “into one of the Little Sisters’ homes and set up shop in a room … and then they operated a Title X [birth-control] clinic in our homes.”
Clement wasn’t claiming that the form requirement would one day lead to Title X tyranny; he was arguing that they are exactly the same thing. “[J]ust because this is more intangible, I don't think the principle is any different,” he said. The moment was beyond surreal; it was Palinesque.
Based on the strength of comments made from the bench, the most likely outcome is a 4-4 decision—a nightmare result that means the Supreme Court will have to revisit the issue sometime soon. (An evenly divided Court means that the requirement will remain in place everywhere but the Eight Circuit.) And the stakes in Merrick Garland’s nomination, and in the presidential election, will be dramatically underscored.
Under the ACA, every new health-insurance policy is required to cover basic contraceptive services for female policyholders at no additional cost. Men and women pay the same premium, and women are able to receive contraception from their doctors precisely the same way any other patient receives medical services. However, “houses of worship”—that is, religious nonprofit organizations whose sole function is a religious one—are entirely exempt. Houses of worship need not provide contraceptive coverage to their employees at all.
There is, however, a huge universe of religious nonprofits that are not houses of worship—hospitals, universities, social-service agencies, etc. And the religious sponsors of many of these nonprofits also have objections to some or all forms of contraception.
A central tenet of the ACA, however, is that a full range of “preventive-care” services must be available to the insured if at all possible—and contraception, which demonstrably leads over time to better health outcomes for women who use it, must be among those services. They are to be provided “seamlessly”—meaning that they are to be covered by the same policy as the main one, at no additional cost, and with no difference in the delivery and coverage.
When the Department of Health and Human Services implemented the ACA’s employer-coverage provision, then, it tried to pursue that objective by allowing religious nonprofits to disassociate themselves from contraceptive coverage without blocking it or removing it from employee plans. Under HHS regulations, religious nonprofits must notify the government of their objection to paying for or providing contraceptive coverage. Once the government is notified, it in turn notifies the employer’s insurance company or plan administrator. The company or administrator—instead of the religious nonprofit—then must provide the coverage to female employees at no cost to the employees.
What the houses of worship get is an “exemption.” The religious nonprofits, on the other hand, get an “accommodation”—that is, a compromise—a familiar technique in many religious-freedom cases, by which the government observes the concerns of religious people and organizations while at the same time achieving its goal. It’s nothing new: In U.S. history, a conscientious objector to war has not needed to bear arms; but he or she has had to certify an objection and then do “alternative service.”
Interestingly enough, in 2014’s Hobby Lobby v. Burwell, the Supreme Court’s conservative majority ordered the government to offer precisely this accommodation to for-profit companies whose owners had religious objections to contraception: “[T]his system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty,” Justice Samuel Alito wrote then. In a separate opinion, Justice Anthony Kennedy hailed the accommodation as well, saying it “equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.”
But that was 2014; in 2016, apparently, that alternative offers no respect to the nonprofits’ religious liberty.
The objection now is that, as Clement put it, “They are going to hijack our health plans and provide the coverage against our will.” A few moments later, Chief Justice John Roberts—whose vote against the government is not in doubt—picked up on the term “hijacking”: “It seems to me that that’s an accurate description of what the government wants to do,” he said. Then, a few minutes later: “The government is hijacking their process, their insurance company, their third-party administrator.” Finally, Kennedy took up the metaphor, asking why the government found it “necessary to hijack the plan” in order to get female employees the coverage they are entitled to under the statute.
The repetition of that word bodes ill for the government. Even more forebodingly, Roberts, Kennedy, and Alito seemed utterly oblivious to the other side of the question. If the plan “belongs” to the employer (Justice Stephen Breyer pointed out that it does not, by law), then the benefits surely “belong” to the employee. By definition, she has earned her lawful wages, which include government-required employee benefits.
The decision of how to use those benefits—of whether and when to conceive—is a profoundly personal one that involves sensitive issues of health as well as ethical issues that are hers, and not the employers’, to decide. Unlike a church employee, a woman who works for a hospital or university is often not a member of the sponsoring church; and whether she is or not, the conscience chiefly involved in contraception is hers, not that of a sacerdotal figure in a remote office. Solicitor General Donald Verrilli tried to bring that question to the fore. What the challengers were asking, he said, was that “those rights or those employees who may not share [the] petitioners’ beliefs be extinguished.”
Alito wasn’t interested in employees or their consciences, however. Did Verrilli not understand that this provision offended the important, the traditional, the conservative American religious groups? “It’s not just Catholics and Baptists and evangelicals, but Orthodox Jews, Muslim groups, the Church of Jesus Christ of the Latter Day Saints, an Indian tribe, the Church of Lukumi Babalu Aye—have said that this presents an unprecedented threat to religious liberty in this country,” he said.
And anyway, the conservatives suggested, what was the big deal about including contraception anyway? If it was bothering the employers, why shouldn’t female employees just be required to go off somewhere and get some other kind of policy and pay for it themselves? Or why shouldn’t the government just pay for it? Noel Francisco, arguing for the nonprofit objectors, suggested an “uber-insurance policy where Aetna was the company that the government picked to provide contraceptive coverage to all women.” Congress could change the ACA, they suggested, or make Title X coverage available to women who worked at religious nonprofits or pass an entirely new statute. Alito even suggested that Obama could issue some kind of executive order.
Why are women being so difficult?
The coverage needs to be “seamless,” Justice Sotomayor responded, because “there is plenty of evidence that was relied upon to show that when contraceptives are provided to women in a seamless way, that the number of unintended pregnancies dramatically falls, as does the number of abortions. And so, that health risk to women who want contraceptives who can’t get it is proven, scientifically and otherwise.” In other words, making women get separate policies means that fewer women would get them, fewer women would have access to contraception, the number of abortions would rise, and women’s health would suffer.
The conservatives responded like talk-radio hosts hearing the words “climate change.” “So she’ll have two insurance cards instead of one,” Alito said. And Roberts said, “It comes down to a question of who has to do the paperwork?” It is a bit like the conservative attitude toward legal abortion. Fine, women have a “right” to an abortion if they insist; but if they have to drive hundreds of miles, or make two trips a week apart, or endure shaming government scripts or a mandatory ultrasound, so what? They can still get their abortion if they are so set on one. So, too, if contraceptive coverage is more expensive, or harder to get, or just generally separate but unequal, why should that bother anyone?
It was a distasteful and dispiriting 90 minutes. The conservatives’ hostility to government, and to government-regulated health care, formed a toxic smog when it combined with what seemed, to use a term I don’t use lightly, like good old-fashioned boys’-club sexism. Women and their concerns, the conservatives seem to think, should not intrude into serious areas like medicine and health.