On Friday, the Supreme Court granted review in what is likely to be the hottest-button case of the term. The issue, once again, is the Affordable Care Act; and the question is whether the government, acting in compliance with the act, can require religiously oriented nonprofits to allow their employees to get contraceptive care with their insurance, even if the employer doesn’t provide or pay for it.
The cases, seven in all, are the next front in the battle against contraceptive coverage under the Affordable Care Act. The first skirmish, the 2014 case of Burwell v. Hobby Lobby Stores, concerned a for-profit corporation whose stock was owned by a highly devout evangelical Christian family. Even though the business was a retail chain with some 23,000 employees, Hobby Lobby claimed a religious right to have the government exempt its health plan from the “contraceptive mandate”—the requirement that employers cover all medically approved forms of contraception. Hobby Lobby argued that the corporation should possess all the free-exercise rights of its stockholders; those stockholders believe that some methods of contraception are “abortifacients.” That objection, they said, should trigger the protections of the Religious Freedom Restoration Act.
In a startlingly broad opinion, the Court agreed; Justice Samuel Alito, writing for the five conservatives, said that the company has a religious right not to “perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act [under its belief system] by another.” If employees independently choose to use their insurance for contraception, without the employers’ knowledge or approval, that was a still “substantial burden” on their employers’ rights, because the employers found that conduct immoral.
The nub of the Hobby Lobby opinion was that the government must offer for-profit objectors the same accommodation it had already offered religious nonprofits. In his Hobby Lobby opinion, Alito wrote that offering for-profits the nonprofit exemption would be “less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”
Health-insurance regulations issued by the Department of Health and Human Services under the act already contained two provisions designed to protect religious organizations. First, houses of worship and their “auxiliaries” need not provide contraceptive coverage to their employees at all; second, nonprofits that aren’t houses of worship but have a religious identity (such as hospitals, social-service organizations, and other charities) can “opt out” of handling and paying for the coverage. If they do, the commercial insurer or plan administrator running the plan must provide the coverage without cost to the employees or the employer. To further disassociate the employer from the coverage, the administrator must notify the employees of the coverage; the employer does not.
But religious objectors had never said they would accept even that “opt out” provision. At oral argument in Hobby Lobby, Justice Sonia Sotomayor asked superlawyer Paul Clement, “you’re saying [Hobby Lobby] would claim an exemption?” Clement would not answer: “We haven’t had to decide what kind of objection, if any, we would make to that.” Alito’s opinion was equally coy. The government must make the offer, he suggested; but “[w]e do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”
At first, HHS required objecting nonprofits to use a government “opt-out” form. Some nonprofits objected to cooperating even this much. HHS then said that they could use any means they choose to notify the government that they want nothing to do with contraceptive coverage.
In the cases granted Friday, the plaintiffs are religious nonprofits who claim that even objecting to the coverage—even without filling out the form—violates their free-exercise rights. In his petition for certiorari on behalf of the Little Sisters of the Poor, Clement writes that the accommodation requires the objecting organization to change its health plan—and thus is “designed to force a religious employer to allow its own plan to be used to facilitate access to the very contraceptive coverage that it finds religiously objectionable.”
If the Court agrees with this argument, the same argument will surely soon be made by for-profit companies like Hobby Lobby—and, as Justice Ruth Bader Ginsburg pointed out in her Hobby Lobby dissent, some religions object to blood transfusions, vaccinations, and prescription anti-depressants. That triggered the most ominous passage in the majority opinion. Responding to Ginsburg, Alito downplayed such worries: “those requirements may be supported by different interests (for example, the need to combat the spread of infectious diseases).”
That is the real, unstated question under this never-ending contraceptive-mandate battle: Are women’s health needs, and their independent choices, in some way “different”—that is, particularly troubling to the conscience? Is there something specially and understandably offensive to religious believers—even, as Alito’s opinion implies, something less important—about contraception than other health coverage?
If so, what is it?
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