The Supreme Court’s Suggested Solution in a Contraception Case Won’t Satisfy the Right

We know the Affordable Care Act says that employers must include contraceptive coverage in their employees’ healthcare plans. But as a result of the Hobby Lobby Supreme Court case, companies with religious owners who believe contraception is wicked (or, wrongly, that it amounts to abortion) don’t have to comply with the law. They’re exempt.

As we’ve written about before, there’s a case currently in front of the Supreme Court that defies common sense.

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It involves the Little Sisters of the Poor, a Catholic non-profit. They also want an exemption to the law. What’s weird about their case is that religious groups are already exempt. They just have to fill out a form that basically says “Give us the exemption,” and that’s it.

So what’s the problem? Rolling Stone‘s David S. Cohen explained it well:

Apparently filling out a short form and putting a stamp on the envelope to mail it is too much for some religious non-profits. They want nothing to do with icky, filthy, non-procreative sex, even if no real effort or money on their part is required. So they sued, claiming this accommodation violates their religious liberty, just like Hobby Lobby’s. Almost every appellate court in the country agreed that this claim was absurd, but the 8th Circuit found otherwise in September.

To reiterate: Their problem is that filling out a form saying they don’t want to offer contraception coverage to their employees also violates their religious conscience.

That must be the sort of logic that only makes sense when you believe a communion wafer can magically become the flesh of Jesus…

Earlier today, the eight remaining justices on the Court sent a letter to both sides in the case, asking them if there was an alternative to filling out the form. Would it be okay, they wondered, if religious non-profits just told their insurers they didn’t want to provide comprehensive health care to their employees? That wouldn’t involve any interaction with the government.

It’s an exemption to the exemption.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

I can tell you already how this will play out: The government will say it’s fine. What they’re currently offering ought to be acceptable already, but this slight rearrangement makes no difference to them, so go for it.

As for the Little Sisters? They’ll whine about this option, too.

Because this case isn’t really about filling out a form. It’s about protesting the very idea of the government allowing women to make their own reproductive choices. The unstated hope of the Religious Right is that a case like this will somehow gut the Affordable Care Act. The Catholic Church already opposes common sense contraception. Why would adding another link to the current chain change anything?

The Christian Right group Alliance Defending Freedom has already said no compromise will be acceptable:

“The government is forcing our clients to offer access to abortion-inducing drugs through their insurance plans. That is no accommodation. The government has many other ways to make sure women may access these drugs, but it has chosen the unjust, unlawful, and unnecessary path of forcing people of faith to participate in acts that violate their deepest convictions. There is an easy solution: The government can offer these services to women who want them without forcing Christian schools, nuns, and priests to abandon their belief that life is sacred. We will confer with our clients to determine a response to the Supreme Court’s request.”

So… filling out a little paperwork violates the “deepest convictions” of people of faith. And giving women access to birth control somehow means they must “abandon their belief that life is sacred.” Besides being a faulty understanding of biology, it suggests that nothing will ever satisfy them.

If that’s the case, maybe the Court will realize this is overreach by the religious groups involved and rule in favor of the government.

Kevin Drum of Mother Jones thinks that’s exactly what’s going on:

The briefs are limited to 25 pages, but it sure sounds as if the government could submit a one-page brief that copies this language exactly and agrees that it sounds just peachy. For all intents and purposes, it seems like the Supreme Court is telling them to do exactly that and they’ll get a ruling in their favor. End of case.

Let’s hope so.

(Image via Shutterstock)

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