The Supreme Court said late Friday that the Little Sisters of the Poor don’t have to fill out the Obamacare form for nonprofit religious groups seeking an accommodation to the contraception mandate. Instead, in order to get the exception, Little Sisters, which provides housing to elderly people in need, essentially has to provide the same information to the Department of Health of Human Services in a … form (or maybe it’s a letter?) the court devised itself. Got that? I know, it sounds weird, but that’s pretty much the upshot of the court’s three-sentence order, which will remain in effect until the 10th Circuit Court of Appeals rules in the case. And which “should not be construed as an expression of the Court’s views on the merits,” the order states.
If this is an odd compromise, well, it’s also a tricky case. Liberal commentators have said otherwise: There’s no serious problem of religious freedom here, the New York Times editorial page and Slate’s Amanda Marcotte argue, because all Obamacare asks religious organizations to do is sign a form certifying that they don’t provide contraception—as they’ve already made clear. These cases are about a single two-page form. But there is no clear answer to what signing that form means—or even, rather bizarrely, what concrete effect doing so has.
There are about 20 lawsuits bubbling up over this around the country, with religious groups saying the form is the gateway to authorizing contraception coverage, one they don’t want to walk through. The government responds that actually, for some of the groups, signing the form will mean nothing at all. Not signing, though, subjects them all to hefty fines. The lower courts are split over these cases, and so far most of them have actually sided with the religious groups rather than the government. And so, understandably, first Justice Sonia Sotomayor on her own and now the full court have hit the pause button at this preliminary stage, when what’s at issue isn’t who wins but whether to delay the fines while the courts wrestle with the underlying questions. These cases involve the kind of tangled facts that take time to sort out. In the meantime, it doesn’t make sense to impose big fines on groups like Little Sisters.
The Affordable Care Act requires health insurers to cover comprehensive health care for women, including a full menu of contraception and sterilization services. The Department of Health and Human Services decided what to cover based on recommendations by the Institute of Medicine. The IOM brought together a bunch of experts, who reached the obvious conclusion: Yes, contraception is crucial to basic health care for women. After all, nearly half of pregnancies are unintended, and those pregnancies can have adverse health consequences.
All good so far. The problem is that most of us get health insurance through our employers, and some of them object to birth control on religious grounds. The Religious Freedom Restoration Act, passed by Congress to safeguard the free exercise of religion in 1993, clearly applies to nonprofit religious organizations. (Whether it also applies to for-profit secular companies is a separate question that the Supreme Court will address later this term, in the Hobby Lobby case and another one involving a Mennonite cabinetmaker.) When the United States Conference of Catholic Bishops, among others, kicked up a fuss about the contraception mandate back in 2011, the Obama administration created two different exemptions. The first is for houses of worship (churches, mosques, and synagogues). It’s a total exemption—these employers don’t have to do anything to get it and their employees have to pay for their own contraception. The second kind is for religious nonprofit organizations, and this one is more like a partial accommodation. These groups, which include Little Sisters of the Poor, the University of Notre Dame, and hundreds of others, have to sign the two-page form and send it to the “third-party administrator” of their health insurance plans. Those entities (TPAs for short) then are bound to provide contraception to the religious group’s employees, according to the Obamacare regulations, without billing or in any way involving the employer. The government is supposed to pay instead, by lowering the fees the TPA pays in the federal health exchange.
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