Democracy in America | Losing their religion

New briefs further complicate Supreme Court contraception battle

By S.M. | NEW YORK


TWO weeks ago, the Supreme Court issued an extraordinary order to the lawyers arguing on rival sides of Zubik v Burwell, the latest tussle over Obamacare and religious liberty. Apparently divided 4-4 after hearing arguments in Zubik on March 23rd, the justices floated a Solomonic compromise that strives to relieve religious non-profit groups of their perceived burden of complicity in the provision of contraceptives to the women who work for them while ensuring that those employees still receive the free IUDs and morning after pills that the Affordable Care Act guarantees. Since the Little Sisters of the Poor (nuns who run nursing homes)—along with dozens of other Christian charities and schools—complained that their religious liberty was illegally impinged by having to notify the government of their conscientious objection, the justices asked the parties to consider “whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies” without “any involvement” of the religious employers.

The justices threw out a specific proposal for both sides to chew on. What if insurance companies providing coverage to people working at these religious organisations were asked to take notice when the employers put in orders for health plans excluding contraception, and responded to this fact by “separately notify[ing] petitioners’ employees that the insurance company will provide cost-free contraceptive coverage”? Would that satisfy the terms of the Religious Freedom Restoration Act, according to which the government may only burden religious belief by dint of the “least restrictive means” toward a compelling state interest? According to the justices' idea, the religious groups would not be asked to fill out a form or send a letter attesting to their objection. They would simply stay quiet and do nothing. It’s the insurance company’s duty to take the cue from their contraceptive-free policy and act to provide the birth control in the religious employer’s stead.


In their supplemental brief filed with the court on April 12th, the religious non-profits seemed to embrace the court’s offer with open arms: “The answer to [the justices’] question is clear and simple: Yes.” But in fleshing out their perspective, it quickly became clear that the plaintiffs’ support for the workaround is conditional on bending it subtly but surely out of shape. The hint comes with the use of the italicised word “truly” (repeated 17 times in the 25-page brief) in this sentence: The fix works, the lawyers write, “so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication”. It isn’t enough, then, for the insurance company to act independently of the employer and pay for the birth control out of a different funding stream. To satisfy the religious scruples of the nuns and bishops running the charities, the insurer will have to segregate the contraceptive coverage all the way down the line. That means separate ID cards and separate accounts, along with, probably, a separate pool of participating doctors. Not just separate. Truly separate.

That bifurcation of everyday health coverage from contraceptive coverage is, as Marty Lederman of Georgetown University wrote a few weeks ago, a burdensome regime that could make it more difficult for women to get the contraceptive and medical care they need. The Guttmacher Institute, a reproductive rights research organisation, explains in its amicus brief that the dual-track insurance model “could deny women the ability to obtain contraceptive counseling and services from their desired provider at the same time they receive other primary and preventive care”. Guttmacher cites the example of “a woman going to her gynecologist for an annual examination” who “may have to go to a different provider to be prescribed (or even discuss) contraception”. Such a “disjointed approach increases the time and effort involved in getting needed contraception and interferes with her ability to obtain care from the provider of her choice” and “would interfere with the ability of health care providers to treat women holistically”.

So to embrace the segregated contraceptive fix is to abandon all hope of realising the aim of seamless reproductive health care under the Affordable Care Act. But the petitioners’ stance is even more problematic when it comes to religious non-profits that provide their employees with health insurance not through an insurance company but through a third-party administrator (TPA). For these plans, employees would have to deal with the TPA for the bulk of their health needs but work with a separate insurance company to get contraceptive care. A rather clunky prescription.

The government’s supplemental brief has a tenor of dispirited reasonableness that has been wasted on plaintiffs who repeatedly shift their ground in an attempt to pivot further and further from a solution that would give tens of thousands of women the health coverage to which they have a legal right. The accommodation under attack in Zubik—release from the contraceptive mandate upon filling out a form, or sending a letter—was not haphazardly imposed on voiceless nuns by vengeful bureaucrats. It was developed under consultation “with religious organisations, insurers, and other stakeholders” over “three rounds of notice-and-comment rulemaking”. The accommodation “goes to great lengths to separate objecting employers from the provision of contraceptive coverage and to minimise any burden on religious exercise” and—despite the dissatisfaction registered by the Little Sisters et al—has been good enough for other “religious organisations providing coverage to hundreds of thousands of people”.

It is unclear what the justices will do with the enhanced mess their order for more briefs has created. They now await one additional set of briefs—replies to yesterday’s filings from each side, due by April 20th. The Supreme Court will then have a little more than two months to find a way out of the thicket before the justices go on their summer break in July.

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