On New Year’s Eve, Supreme Court Justice Sonia Sotomayor issued a temporary injunction (NYT) preventing the government from enforcing the ACA’s contraception requirement on a Denver nursing facility run by an order of nuns, as well as several other non-profits covered by the same Catholic insurer. The nuns argue that even signing-up for an exemption from the mandate violates their religious freedom. Jennifer Haberkorn explains the complexity of the case:
The case brought by the Little Sisters of the Poor Home for the Aged falls into an unexpected loophole in the ACA’s contraception coverage. Earlier this year, the Obama administration tried through regulations to accommodate religious-affiliated nonprofits that took issue with the requirement that employers cover contraception. It allowed groups like the Little Sisters to tell their insurance company or third-party administrator that they objected on religious grounds. The insurer or administrator would then have to provide contraceptives to the employees at no charge. The premise was that an insurer or administrator would not have the same objection to providing such products. But the catch here is that the Little Sisters’ administrator — the Christian Brothers Employee Benefits Trust — is also run by a religious order. The Christian Brothers, who joined the Little Sisters on the lawsuit, qualify as a church under employment law. And under that law, if they don’t want to provide contraception, the federal government has no recourse to force them to do so.
The government is expected to tell the Supreme Court on Friday that if the Brothers have religious objections to the mandate, they can refuse to send contraceptives to the employees with no repercussions — and therefore, the Little Sisters have no reason to bring this lawsuit. That was the government’s argument to the 10th Circuit Court of Appeals in the case. “No one will ever get contraception coverage in that context, so it’s hard to imagine they have standing, that there is a substantial burden on their religious beliefs or that there is sufficient harm to [block the policy],” said Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union, which has filed briefs in support of the government’s position in similar cases. The Little Sisters say they object to even notifying their administrator to provide contraceptives, regardless of the fact that the Brothers would not comply on religious grounds. “What the Little Sisters say is we can’t sign a permission slip to give our employees something that we believe is wrong,” said Daniel Blomberg of the Becket Fund for Religious Liberty, which represents the nuns.
I’m sympathetic to the nuns’ religious liberty. But I honestly think that signing a permission slip for employees to make their own decision about contraception coverage – and not having to pay for it at all – is a perfectly sane compromise. Marcotte fumes:
These Catholic nonprofits that wanted an exemption from covering their employees’ contraception needs—and got an exemption from covering their employees’ contraception needs—are now fighting the provision (that exempts them from covering their employees’ contraception needs) simply because they don’t want to have to fill out a form that states that they are exempt. Why? Because their employees need that form in order to get birth control directly from their insurers (which they need to do because their employers—these Catholic non-profits—are exempt, as they want to be). That’s right: These groups are arguing that filling out a form is a violation of their religious freedom and that “religious freedom” means that you should have control over your employee’s health care decisions even when they happen outside of the insurance coverage you directly provide for them.
Amy Davidson also sees no grounds for the objection other than to restrict access to reproductive healthcare:
The suggestion here is that birth control has such a dirtiness to it that even the formal and financial separation of religious employers from the coverage—they don’t manage it, they don’t pay for it, even though their employees get it—is inadequate. (Purely religious institutions, like churches, have an even broader exemption.) They know about it—know, that is, that the women who work for them have choices that they would prefer they did not have. But they do have them; a Catholic charity can’t insist that the nurses or cleaning women who work for it don’t use contraceptives. (The home has sixty-seven employees.) What the religious-affiliated groups are insisting is that the women bear a heavier economic cost for the sake of their employers’ beliefs—even though the Church groups wouldn’t pay more either way. In that sense, the suit embodies the irrationally passionate objections to not only Obamacare but also women’s access to contraceptives and, more broadly, reproductive rights.
Jill Filipovic piles on:
[R]eligious liberty should end at your own nose, and not entitle you to demand that anyone within your reach adhere to your same principles. It certainly should not give any religiously affiliated organization carte blanche to argue that filling out a form is a substantial burden, and the form requirement itself is tantamount to religious discrimination. The American legal system privileges religious belief over many other kinds of deeply-held moral values, so while this line of argument wouldn’t hold up in court, it’s still worth asking: how is filling out a form a more substantial burden than, say, having to pay hundreds of dollars out of pocket for birth control, or having to travel a substantial distance and spend thousands on an abortion, or raising a child?