Contrary 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 solution — one 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?