Supreme Court accepts challenge to health law’s contraceptive mandate

The Supreme Court on Friday agreed to hear another challenge to the Affordable Care Act, this time to decide whether religiously affiliated organizations such as universities, hospitals and charities should be free from playing any role in providing employees with contraceptive coverage.

The case pits questions of religious liberty against a woman’s right to equal health care access, and it is the fourth time in five years the court will consider some aspect of what has come to be known as Obamacare.

The Obama administration says it has provided the organizations with an easy way to opt out of the legal requirement that employers include contraceptives as part of health insurance coverage. Employers who object must file their religious objections and let insurance companies and the government take over from there.

But the groups say even that step would implicate them in what they sincerely believe to be a sin, adding that they face ruinous fines if they refuse to comply. They want to be included under the blanket exclusion from providing the coverage that the government has already extended to churches and solely religious groups.

The government counters that students and employees of universities and hospitals are less likely to adhere to the organizations’ religious views about contraceptives and that they should not be denied the health care benefits that others covered by the law receive.

The court accepted seven cases from around the country, including one challenge involving the Roman Catholic Archdiocese of Washington and the other from an order called the Little Sisters of the Poor, which runs homes for the aged.

The cases are something of a sequel to the court’s narrow decision in 2014 that some closely held corporations are protected from having to provide contraceptive coverage that offends the owners’ religious beliefs.

In both instances, the objectors say the contraceptive mandate being carried out by the Department of Health and Human Services violates the Religious Freedom Restoration Act. That act says the government must have a compelling reason for laws and programs that substantially burden religious beliefs, and even then government must prove the requirement is the least burdensome way of achieving its goal.

In the court’s 5-to-4 decision in Burwell v. Hobby Lobby, the court’s conservatives suggested that one reason the business owners had a valid complaint was because the government had made the accommodation for churches and religious nonprofits but not for them.

Seven of the nation’s appeals courts have interpreted that Supreme Court decision to mean that the administration’s accommodation was enough.

“All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two­-page form,” U.S. Circuit Judge Cornelia Pillard said when the case involving the Washington archdiocese came before the U.S. Court of Appeals for the D.C. Circuit. “Religious nonprofits that opt out are excused from playing any role in the provision of contraception services, and they remain free to condemn contraception in the clearest terms,” she wrote.

But several prominent conservative judges have protested the rulings, and in September, the U.S. Court of Appeals for the Eighth Circuit ruled against the government.

In a case involving a college and a religious charitable organization, U.S. Circuit Judge Roger Wollman wrote for a unanimous panel that the issue is whether the groups “have a sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage. Their affirmative answer to that question is not for us to dispute.”

Wollman said it was clear the fines imposed for failing to comply with the mandate would be a substantial burden on the groups and that the government did not meet the test of proving there was no other way to meet its goal of providing women with contraceptive coverage.

The government says the rules should be different for churches than for the organizations in the current fight. Churches and purely religious organizations are more likely to hire workers who share their religious beliefs. Universities, hospitals and charities, on the other hand, will have many students and employees who do not share the views of the sponsoring religious groups, Solicitor General Donald B. Verrilli Jr. said in the government’s petition to the court.

 The issue for the court is whether the religious freedom law “entitles petitioners not only to opt out of providing contraceptive coverage themselves, but also to prevent the government from arranging for third parties to provide separate coverage to the affected women,” Verrilli wrote.

Noel Francisco, representing the archdiocese, countered that the case was about “whether the government can commandeer petitioners and their health plans as vehicles for delivering abortifacient and contraceptive coverage in violation of their religion... Petitioners ask only that they not be forced to participate in this effort.”

To be eligible for the government’s accommodation, a religious organization must certify to its insurance company that it opposes coverage for contraceptives, or it must send a letter to the government saying so and provide the name of its insurance company. The insurers and government take over from there to provide the services.

But the religious groups say either of those options serve as a “trigger” that allows the contraceptives to be provided and makes the groups complicit.

Robert Barnes, Washington Post
November 6, 2015

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