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.