Can the religious non-profits be accommodated?

On the Affordable Care Act's contraception mandate, I don't think so.

Benefits logo of the Affordable Care Act

Benefits logo of the Affordable Care Act

Tomorrow we’ll find out the true intentions of the religious non-profits challenging the Affordable Care Act’s contraception mandate. That’s when both sides in Zubik v. Burwell respond to the Supreme Court’s extraordinary post-oral argument order for supplementary written briefs.

The order instructs the government and the non-profits to say “whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

I predict that the government will say such coverage may be obtained and offer a way to do it, but that the non-profits will say no, it’s impossible for our insurance companies to provide the coverage in a way that does not violate our exercise of religion under the federal Religious Freedom Restoration Act.

The government has already made accommodations for religious non-profits, first by telling them to notify their insurance companies and telling the companies to pick up the tab and then by having the non-profits fill out a government form with the name of company so the company can be told to provide the coverage. So long as the coverage comes free of charge through the company, the government won’t have a problem.

But the non-profits will. Thus far, they have rejected the government’s accommodations and now, I predict, they will say that any accommodation that results in their insurance company providing free contraceptive coverage will make them complicit in evil — simply because they are triggering the evil by choosing the company.

You or I may think otherwise. I’d say that the 50 American Catholic theologians who filed an amicus brief on behalf of the non-profits do. They have devised what they say is a morally acceptable scheme under which the insurance companies, once informed that a religious non-profit doesn’t want to provide the contraceptive coverage, would provide the women employees with separate (free) contraceptive policies. This, say the theologians, would relieve the non-profits of complicity according to the tenets of Catholic moral theology.

Thus far, the non-profits have seemed bent on receiving the kind of blanket exemption from the contraception mandate afforded to churches and other exclusively religious institutions. The theologians’ solution falls short of that. We’ll find out what the non-profits really want soon enough. I hope I’m wrong.