Attorneys for the Obama administration will make their case to the Supreme Court today, responding to a temporary injunction over contraception through the Affordable Care Act. Justice Department officials said yesterday they’re “confident” of success, and after taking a closer look at the case itself, it’s easy to understand why.
At the outset, note that contraception access has reached the Supreme Court twice recently, but the underlying controversies have little in common. In the widely discussed Hobby Lobby case, the plaintiffs insist that corporations are people with religious beliefs, capable of spiritual objections to workers’ contraception access. This case will be argued and decided at the high court in the coming months.
The case that led to a New Year’s Eve injunction was brought by a group of Roman Catholic nuns in Colorado who are claiming a religious objection to … paperwork. The New York Times published a compelling editorial today, arguing persuasively that the “alleged threat to religious liberty is nonexistent.”
The Colorado nuns’ group, the Little Sisters of the Poor, is a religiously affiliated organization that is exempt from the health law’s requirement that employer insurance plans cover contraception without a co-pay. The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator. The nuns say that minor requirement infringes on religious exercise in violation of the Religious Freedom Restoration Act.
Under that law, the federal government may not “substantially burden a person’s exercise of religion” unless the government demonstrates that the burden is the least restrictive means of furthering a compelling interest. The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden.
Let’s consider this in practical terms, reflecting on the compromise the Obama administration unveiled nearly a year ago. Let’s say you’re a woman who works at a religiously affiliated university and you want to take birth control bills, which your bosses consider too sinful to pay for. Under the Affordable Care Act, houses of worship are already exempt, but employers like yours have an alternate route: they’ll offer you a health care plan that doesn’t cover the medication, but the university’s insurance company will then create a new, separate policy that will cover your contraception.
You still get the pills, the preventive care is still available with no co-pay, and your employer no longer worries about subsidizing your health care choices that it might find religiously offensive.
All your bosses have to do is fill out the paperwork, noting the religious objection, and beginning the process.
The lawsuit filed by Little Sisters of the Poor isn’t saying they’re opposed to subsidizing contraception, because the group isn’t subsidizing contraception. Rather, the lawsuit is objecting to literally filling out the forms.
Wait, it gets worse. As MSNBC’s Irin Carmon explained, the Little Sisters’ employees “likely won’t get contraceptive coverage even if they do sign the form.”
The Little Sisters case is different, because it’s disputed that the regulations even apply to them and their plan, administered by the Christian Brothers Employee Benefit Trust. When they filed in a district court in Colorado, the government moved to dismiss the case, arguing that it actually doesn’t have authority under federal regulations to require a “church plan” to provide contraceptive coverage at all, or to charge the employer fines for not complying. That’s because such plans are exempt from ERISA, which serves as the enforcement mechanism for the Affordable Care Act.
So, we’re dealing with a group that filed a federal lawsuit, raising a religious objection to paperwork, addressing access to medication that the group’s employees won’t get anyway.
The sooner Justice Sonia Sotomayor lifts this injunction, the better.