Important contraception case hearing today

The US Supreme Court will hear oral arguments on a very important case involving Obamacare, religion, and contraception. This case does not challenge the constitutionality of Obamacare itself, although the religious groups bringing the suit and its conservative backers had hoped it would. After the Supreme Court twice ruled earlier upholding the constitutionality of Obamacare, it turned down efforts to turn this into a third attempt.

Instead this case involves whether the accommodation given by the government to religious groups that oppose contraception, that allows them to not pay for it and yet enables women to receive it, is insufficient to prevent a violation of the Religious Freedom Restoration Act (RFRA). Seven religious groups say that even simply writing a short letter to the government seeking the exemption is too heavy a burden on their religious beliefs.

Sarah Smith and Nina Martin of ProPublica provide an excellent summary of the issues involved in this case.

The religious groups contend that even the simple act of signing a bureaucratic form violates their core beliefs if it helps employees obtain birth control. “It’s an unprecedented challenge to the very process by which a religious objector gets out of complying with the law,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. “This is something we have not seen before.” A ruling in favor of the religious nonprofits would not only undermine key provisions of the ACA, but it could lead to challenges to laws meant to protect gays and lesbians from discrimination, Borchelt said.

The religious petitioners make their own slippery-slope argument. “We could quickly see this turning into abortion coverage as something mandated,” said Patrick Reilly, president of the Cardinal Newman Society, a Catholic education watchdog. “We could even see mandatory coverage for the drugs needed for assisted suicide in states that have legalized it.”

The nonprofits don’t want to be forced to do anything that makes it possible for their employees to obtain birth control. The mere act of filling out a form or writing a letter makes them “complicit in a process” that they consider sinful, the Conference of Catholic Bishops argued in a friend-of-the-court brief in the Zubik case. As another nonprofit put it, the Obama administration’s various accommodations have given religiously affiliated organizations “multiple options for violating their sincere religious beliefs instead of just one.”

Greg Lipper, an attorney for Americans United for Separation of Church and State, said the nonprofits’ argument was “rather unprecedented.” “It’s as if I had a conscientious objection to serving in the war and I was given and exemption to the draft, but I refused to even accept that exemption because someone else would be drafted in my place.” Reproductive rights supporters contend that if the nonprofits’ argument holds, religious objectors would be given sweeping new powers to influence actions by third parties — in this case, employees who want to obtain coverage for their birth control from an outside source.

LGBT groups in particular are worried that extending the reach of the religious freedom act would give new impetus to religious nonprofits that object to gay marriage. “[We] already anticipate religious employer refusals to making Social Security payments that would protect a same-sex spouse,” Lambda Legal Defense and Educational Fund wrote in a friend-of-the-court brief. Similarly, death-with-dignity groups worry that Catholic hospitals will refuse to transfer patients to facilities more open to physician-assisted suicide.

This is an important case and the authors discuss how the absence of a ninth justice Antoni Scalia will impact the outcome.


  1. Smokey says

    This case will be ruled in favour of non-discrimination. The Christofascists will lose. And their tears will taste better than ambrosia and replenish the groundwater in California.

    The absence of Scalia makes the whole world a better place.

  2. Holms says

    “Seven religious groups say that even simply writing a short letter to the government seeking the exemption is too heavy a burden on their religious beliefs.”

    This seems to be a peculiarity of USA. Being told to fill out a form to apply to a religious exemption to something is reasonable enough -- how else is the government supposed to know something is against your religion? -- yet these greedy narcissists take anything but total capitulation as a grave burden. Imagine the outraged squawking if the answer came back ‘no’!

  3. Henry Gale says


    My understanding is that completing the form is not the issue. The claim is that the govt inserts a benefit into the benefit planSister Constance Veit says she doesn’t object to signing the required form or a letter.

    [Blockqoute]”The religious burden is what that signifies, and the fact that the government would, you know, be inserting services that we object to into our plan, and it would still carry our name,” she says.[/blockqoute]

  4. moarscienceplz says

    The absence of Scalia makes the whole world a better place.

    Clarence Thomas has often been accused of blindly following Scalia’s lead. Let’s hope he can hold to the trend one more time.

  5. Reginald Selkirk says

    ”The religious burden is what that signifies, and the fact that the government would, you know, be inserting services that we object to into our plan, and it would still carry our name,” she says.

    “But if we singed the form, that would enable our employees to get birth control, thus thwarting us from imposing our religious beliefs on them.”

  6. says

    From what I hear regarding the oral argument today, they court may end up splitting 4-4. I do think there is an even narrower accommodation than having the organization sign a form. That would be having each employee verifying to the insurance company that their employer refused to pay for contraception coverage. So, if the court really does split 4-4, then the Obama administration should just let employees verify to their insurance company that their employer won’t sign the form, and then they get coverage.

    And then the religious organizations are entirely out of the loop, but contraception is still covered.

  7. Holms says

    Well no. The idea that an organisation can simply not fulfil their obligations to their employees, and force said employees to do the paperwork for the employer’s choice is one in which the employer can simply opt out of anything they choose, for no stated reason.

  8. Pierce R. Butler says

    Talking Points Memo reports that several of the male justices had no clues whatsoever about contraception (and damn little about insurance), as revealed by their inane questions during today’s hearing.

    Even alleged semi-feminist Anthony Kennedy seemed to take a position firmly rooted in sexist fantasy.

  9. doublereed says

    Wow those questions were depressing. They also seemed oddly self-defeating. If it’s not an undue burden for the employees to “just fill out the forms,” then obviously it isn’t for the organization to do so. Maybe I didn’t understand their logic, because even granting their bizarre view of healthcare it made no sense to me.

  10. lanir says

    If the ruling was in favor of the religious kooks they’d have a helluva time keeping it from causing all sorts of bizarre nonsense. The same argument could be made for just about any sort of religiously based excemption from a pass on selective service registration for religiously based pacifism (amazing how THAT wasn’t an important enough issue for these assholes but screwing over women is) to vaccinations. And that’s without adding any new excemptions for sexuality or other issues where religions traditionally showcase their hypocrisy.

  11. lorn says

    List this under things that aren’t going to happen. Somewhere I read that RBG and Clarence Thomas were friendly. What if CT, having lost Scalia as a guide, adopted RBG as his guiding light? What if CT went full-on feminist?

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