Religious nonprofits cave in contraception mandate case

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shutterstock_168507407-276x369Contrary to what I predicted a couple of days ago, the nonprofits challenging the Affordable Care Act’s contraception mandate accommodation in Zubik v. Burwell did not reject any plan that requires their insurance company to pick up the tab. Instead, the nonprofits yesterday filed a supplemental brief embracing the Supreme Court’s proffered solutionone advanced by a group of 50 Catholic theologians — that the insurers be required to offer the employees a separate plan providing the coverage.

In other words, they caved.

In its own supplemental brief, the government grumpily insists that the court’s scheme does not differ significantly from the accommodation that the the nonprofits are challenging. And the government is right.

Up till now, the nonprofits have insisted again and again that they cannot be party to any arrangement that “triggers” the contraception coverage by their insurer. That, they’ve said, would unacceptably infringe on their religious liberty by making them complicit in the provision of something they consider evil. But under the process they have now accepted, the insurance company is no less triggered. It will be obliged to provide the coverage.

So what’s changed? I’d say this is another consequence of the death of Antonin Scalia. Faced with, at best, a four-four split on the present court (to say nothing of the increasing likelihood that a Democratic president will appoint Scalia’s successor), the nonprofits decided to embrace the court’s suggestion as the best deal they could get, and simply grant that it doesn’t jeopardize their religious freedom.

I don’t think it does either, just as I don’t think the existing accommodation does. It will be interesting to see if the nonprofits’ claque of conservative supporters agree. But let’s take the non-profits at their word:

The government can obligate, incentivize, or contract with the insurance company to offer separate contraceptive coverage to employees who do not receive any coverage from their employer without any involvement by the petitioner “beyond [its] own decision to provide health insurance without contraceptive coverage to [its] employees.”

If this arrangement relieves the organization in question of all complicity in the provision of religiously objectionable coverage, I’m hard pressed to understand why it shouldn’t also be put in place for the churches and other exclusively religious institutions that, under the ACA, are entirely exempt from the mandate. Surely some of their employees would like to avail themselves of the free contraceptive services that the ACA requires. Why not give it to them?

  • Thomas A. Szyszkiewicz

    Um, no. As Mark Rienzi, attorney for the Little Sisters, said this morning, the only thing they’ve been asking is that the government leave the Little Sisters out of it. That’s all they’ve been asking throughout these five years and that’s all they’re saying in their briefs.

  • Um, yes. Rienzi was blowing smoke.

  • cken

    So this is religions acting like government politicians. Find a loop hole for public consumption which in this case allows them to say they maintained their moral high ground while in effect they are not. Isn’t that the pox of modern Christianity which is a contributing factor to its decline. If we don’t stand up for our values and principles should we be surprised when they are denuded.

  • Bill Kirk

    Hardly a cave. The petitioners don’t necessarily like it, but they have all along acknowledged the power of the government to make contraceptives available… “To be clear, that is not to say that petitioners endorse such an approach as a policy matter.. Many of them most emphatically do not, as they sincerely believe that the use of some or all forms of contraception is immoral, and they are hardly indifferent to efforts to encourage or facilitate that use…., however, petitioners do not object under RFRA to every regulatory scheme… Petitioners simply object to having to play a morally impermissible role in the process through which those insurance companies (or anyone else) might provide contraceptive coverage to their employees. If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.”

  • Thomas A. Szyszkiewicz

    If you accept Mark Silk’s reading of it, that’s the way to read it. But if you “take the non-profits at their word,” as Mr. Silk encourages us to do, all that they have wanted all along is to be exempted from the process. And no, Mark Rienzi wasn’t blowing smoke — I’ve read all of their briefs and that is all that they have been asking for all along.

  • The distinction seems very obvious:

    1) In the prior scenarios proposed by the government, the Little Sisters (and other objectors) had to take some action that triggered the provision of contraceptives, and other objectionable services.

    2) What the objectors say they will not object to is a scenario in which no action by them is necessary.

  • Lazy Harp Seal

    They still must notify their insurer that they want a plan without contraceptive coverage because of their religious objections. That process still “triggers” the objectionable coverage, and there is still some action taken by the Little Sisters. The paperwork is just different.

  • Dennis Lurvey

    what these christian institutions (and christianity is the only religion asking to be immune from civil laws) want is to open a door in the law that their other christians can walk through, making is open wider each time. It’s why the freedom from religion foundation and other groups for separation of church and state keep taking christians to court for crosses on govt land/monuments on govt land. If we let them open that door to a shadow theocracy just a little their puritan brethren will rush threw it. Soon we would have to pledge to love jesus just to vote. In history these people have not stopped till they are executing non christians (our own colonies are a good example).

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  • Well, in moral theology, distinctions, even close ones, matter.

    They would have told their insurers that in any case. That’s not an action they are taking at the behest of the government. It’s an action they would have taken on their own initiative. And it doesn’t directly trigger the objectionable coverage.

    Those who side with the government have either misrepresented, or misunderstood, the issue here. The sisters do not object to stating their objection. They have done so repeatedly. What they object to is authorizing the objectionable coverage in any fashion whatsoever.

    Telling the insurer, like telling the government, they object to contraception has never been the issue. It is being asked to perform an action that authorizes it (which is what the form they were asked to sign, did).

  • Nancy D.

    Contraception is not Life-affirming or Life-sustaining, and in some cases, destroys a human life, promotes promiscuity and the sexual objectification of the human person, as well as sexual relationships outside of the marital act, which is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife.
    The contraception mandate is being unconstitutionally enforced by an administration agency that desires to coerce the condoning and promotion of the use of contraception through a mandate that was added to The Health Care Bill after it was passed and became law, thus changing the letter of the law, through an obscene tax, that violates the principle of proportionality, out of a desire to influence the recepient of said fine into not only violating a tenet of their Faith, but forcing them to condone and promote the contraception mentality.

    “Formal cooperation involves actually intending an evil purpose, regardless of…

  • N.D.

    “Formal cooperation involves actually intending an evil purpose, regardless of the extent of physical participation in executing the act, e.g., advising, counseling, promoting, or condoning an evil act – all constitute formal cooperation.”

  • Dennis Lurvey

    the whole idea of ‘objectionable’ coverage in a secular society sickens me. when a persons religious beliefs affects another persons freedoms it’s too far. the freedom of religion, conscience, is between the ears. You can believe what you want, but when your religion (for instance) takes a woman’s constitutional right to birth control without her permission, it’s a theocracy.

    The Court of Appeals vacated the dismissal, holding that the statute is a prohibition on contraception per se and conflicts “with fundamental human rights” under Griswold v. Connecticut, 381 U.S. 479 . Appellant, inter alia, argues that appellate lacks standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives – See more at:

    http://caselaw.findlaw.com/us-supreme-court/405/438.html

  • Dennis Lurvey

    you applying your puritan age beliefs to citizens in a secular country is damn scary. I thought you people lived in cults in texas. we are not a theocracy and your religion means nothing in civil law. have some compassion for people not so caught up in 18th century witch burners as you seem to be.

  • Dennis Lurvey

    I’m sure to a witch burning puritan is does. be have a bill of rights that protects individuals and minorities from majority rule. btw polls say your depth of religiosity is down to about 20% in america.

  • cken

    To ask for an exemption and then allow somebody else to provide the service creates a dichotomy, a legal fiction if you will which in practical effect isn’t real. When that occurs within a religious nonprofit I would call it a religious legal hypocrisy. Personally I think providing contraception preventatives is preferable to somebody having to get an abortion. But I really don’t have a horse in this race.

  • yoh

    Thank you for demonstrating that objection to contraception is neither rational nor remotely sane. Without religious support, it would be banished to the realms of abandoned superstition where it belongs.

    Your opinions on the subject are your own and there is no compelling reason for anyone else to have to abide by them. In fact the overwhelming majority of people in the world, including virtually every Christian like yourself ignores such things.

    More importantly your religious beliefs are NEVER EVER EVER going to be the basis for anything under our laws. All laws in this nation must have a rational and secular purpose. Religious freedom means nobody has to live according to your faith or have to be compelled to care what you believe God wants.

  • yoh

    There is nothing evil in contraception. Its prohibition in certain religions is entirely arbitrary in nature and lacks any rational purpose.

    Such doctrine only serves 2 functions: To encourage demographic expansion of a given faith (a rather self-defeating action which promotes poverty) and to control sexuality as a form of binding families to a faith.

    The Nuns and other non-profits had no business in making decisions as to the healthcare choices of their employees. Such interference was a trespass and a moral wrong perpetrated against the workers. It is fairly clear that self-righteous types have no respect for the privacy of others and consider their opinions more important than general notions of civil liberties.

  • cken

    Apparently you are a person that thinks sex should be for the sole purpose of procreation. If you are that is fine, but I think you represent a very very small percentage of the population. Therefor it is not effective, practical, or enforceable to demand that of the rest of the population. Furthermore promiscuity is never the result of contraception; it is a function of your moral code, your psychological make up, and how you were raised.

  • G Key

    “Promiscuity”, as a word, is very plastic
    It stretches with each user, like elastic
    You pull it this way, it becomes bombastic
    I pull it that way, it’s iconoclastic.

    The moral is, what’s moral to me (respecting privacy) may not be moral to you (non-marital sex), and what’s moral to you (declaring what’s moral) may not be moral to me (invading others’ equal rights and lives).

  • Dennis Lurvey

    thank you. but there is a corporate backed movement to place preachers and pastors in public office to keep their dreams of a theocracy alive. Scalia didn’t believe in separation and sometimes he got his way new scotus justice means everything to secular america.

  • Ernest Denniston

    “Petitioners simply object to having to play a morally impermissible role in the process …If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.”

    It seems like the petitioners insistence that there be a separate enrollment process (initiated by the employee not the insurance company), policy and insurance card are unnecessary if the objective is to eliminate the employers role in the process. Additionally, these encumbrances interfere with the government’s objective of a seamless process. Apparently, discussing contraception with the doctor would have to be billed using a separate policy, from discussion of, e.g., blood pressure, even though those discussions took place at the same appointment and possibly at the same time.

  • Bill Kirk

    That the government would like a “seamless process” is nice… but of no import. RFRA requires that if a person’s religious exercise is “substantially burdened,” the government must excuse the person from complying with the law unless the government can show that it has a “compelling interest” and that there is not a less restrictive alternative that would carry out its interest with less of a burden on religious exercise.

  • Dennis Lurvey

    Let’s be clear the nuns goal is to make constitutionally protected birth control as difficult to get for their employees as possible in hopes they will stop using it. The goal in the last 150 yrs is to keep woman at home with children even if men have to force the birth of children. If women don’t have children or can have sex for fun because of birth control men are afraid women will be unfaithful or leave the home.

    Another reason the catholic church won’t budge on this is their religion grows the more babies are born to catholics. Birthing new catholics, as many as nature allows. They are out breeding other religions even though catholics are not practicing their beliefs evenly.

  • Dennis Lurvey

    So you believe there are a group of people in america that should be excused/immune from laws the rest of us have to follow?

    There should be a court test for how to determine what is a “substantial burden” and what is not, like the lemon test or coercion test. In this case the burden is a bad feeling that the nuns can’t make it as difficult as possible for their employees to get constitutionally protected birth control. Where is the compassion of the nuns for their employees? Most times we just dont get all of what we want. I’m guessing after this the nuns will go after employees short skirts.

  • The Little Sisters would, presumably, prefer that the government not promote contraceptives at all. That is the almost necessary inference from the Catholic Church’s teaching that contraceptives are intrinsically evil. But their lawsuit does not aim at that, for various reasons that should be obvious.

    There is nothing hypocritical about someone who says, in effect, “I wish you would not do that terrible thing you are doing — but if you insist on it, then please leave me out of it.” Of course the sisters and the other litigants know the government will persist in it’s promotion of contraception. Why is that persistence, on the government’s part, the fault of the sisters?

  • Dennis Lurvey

    the govt does not ‘promote’ birth control, the courts have said it’s legal and a woman’s right to use it.

    You can’t separate this legal case from the history of it. A group of male doctors got abortion made illegal in 1880 so they wouldn’t have to share the fees with midwives, men were against birth control so they could control their wives sex lives, the uproar over birth control was as big as it is now for abortion. But the extreme christians have now lost the fight to keep slavery, to keep segregation, to keep women from voting, to ban birth control, to ban abortion, to stop gay marriage, etc. the nuns case is part of the larger fight to keep christianity a powerful influence on our govt and laws after loosing all those battles, and now christians are declining at a rate of 2% a year because they are out of touch and it is becoming even more obvious they just want to control us with their archaic beliefs.

    they won’t just be thrown out of public square, they will be…

  • Buckwheat3

    The last two sentences of the article sums it up completely. The individual should be able to make the decision what is best for them.

  • Conservative4Hillary

    What about religious freedom of parents who do not want to give medical care to their kids? if you work for them can they deny medical care for your kids for the same reason?

  • Well_Read

    religious freedom is not absolute, the establishment clause restricts it from encroaching on govt. religious freedom was supposed to be in individual freedom to believe what you want between your ears and not have others encroach on your beliefs unless you are willing. All of us have the freedom to listen to what religions have to say voluntarily and either believe it or laugh at it or something in between.

    The employees freedom of religion is being encroached on by the belief of the employers, that should be unconstitutional.

  • jimrussell

    Maybe a little compromise. O K, polls are showing we are finally getting over the “Big Guy in the
    Sky” fantasy, especially people with an education. It’s a free country,
    everyone is welcome to one vaporous voodoo deity and at least 2
    invisible friends. But they are going to have to understand, absolutely
    no political input about anything and they are going to have to pay
    taxes on income and property, Unemployment may go up a little when
    these lazy slick freeloading Bible Thumping snake oil salesmen preachers
    have to get a job instead of fools subsidizing their $1,000 suits and
    life style.

  • μακάριος

    Why do you post almost the same thing on every site?