3 Reasons the SCOTUS Challenge to Contraceptive Mandate is a “Religious Liberty” Stalking Horse

Now that the Supreme Court has announced that it will hear a consolidated set of cases regarding objections to the contraceptive mandate in the Affordable Care Act, including the suit brought by the Becket Fund on behalf of the Little Sisters of the Poor, it’s worth remembering three key points about what will be the highest profile “religious liberty” case since Hobby Lobby.

1) It’s About the Exemption

The first is that the Little Sisters of the Poor and the other plaintiffs are already exempt from the so-called contraceptive mandate, the requirement that health insurance plans cover no-cost contraceptives as a basic preventative service. While the case is being widely portrayed in the media as the plaintiffs challenging the mandate, they are actually challenging the exemption from the mandate that they have already been granted. [See Kara Loewentheil’s post for more on this.]

The Little Sisters and the other plaintiffs charge that merely notifying the government that they are opting out of providing coverage will “trigger” the coverage and, therefore, still violate their religious beliefs. Six out of seven appellate courts who heard this argument rejected it out of hand, saying the paperwork was merely an administrative matter that severed the plaintiffs relationship to the disputed coverage, but one, the U.S. Court of Appeals for the Eight Circuit, bought into the plaintiffs contention that a religious liberty objection was whatever they said it was.

2) It’s About More Than Contraception

While contraception access is important, both in terms of equity for women and the prevention of unplanned pregnancy, the bigger issue is the ability of the government to construct seamless work-arounds for individuals who are affected by various, and proliferating, claims of religious liberty.

As Solicitor General Donald Verrilli noted in the government’s petition, the issue is whether a religious freedom law like the Religious Freedom Restoration Act “entitles petitioners not only to opt out of providing contraception coverage themselves but also to prevent the government from arranging for third parties to provide separate coverage to the affected women.”

On a practical level, this would mean that women who work for organizations that refuse to provide coverage have to figure out alternative means to access contraception. They would either have to pay a private provider out of pocket, or go through the trouble of seeking out an alternative government-subsidized provider like Planned Parenthood authorized to provide free coverage. Both are barriers to contraceptive access.

And on a conceptual level, it would mean that the government could be prevented from arranging work-arounds for other religious liberty claims. What happens if an organization refuses to provide health insurance coverage to the same-sex spouse of an employee because it doesn’t recognize same-sex marriage? Would the government be prevented from working with the insurer to provide coverage? Would the spouse be told to go look around on the open market for health insurance?

3) Many Already Cover Contraception without Problems

Finally, it’s important to remember that, at least in the case of Catholic non-profits, many already cover contraception for employees and students. Catholic insurance plans also often cover birth control through an administrative work-around, like having Blue Cross/Blue Shield process the contraceptive claims.

Catholic health service providers and nonprofits are technically forbidden under Catholic doctrine from “cooperating” in the provision of only two things: abortion and permanent contraceptive sterilization. Traditionally contraception fell in a gray area, where Catholic providers could sort of cooperate, especially if it would be damaging to their business not to.

The crackdown on contraception came at the behest of the Catholic bishops’ conference, which coupled outspoken, indignant objection to the contraceptive mandate with objection to the growing legal recognition of same-sex couples under the banner of “religious liberty.” This was a political move on the part of the bishops to forestall growing civil acceptance of homosexuality and other non-procreative relationships that counter Catholic doctrine.

It’s instructive to note that Catholic health systems are conspicuously absent from the list of plaintiffs to the contraceptive mandate. Of the seven cases that will be heard by the court, other than the Little Sisters of the Poor, who are the Becket Fund’s poster children for the injustices of the mandate, there are two Catholic dioceses, where the bishops themselves are essentially the plaintiffs, the controversial anti-abortion group Priests for Life, and three Christian colleges.

As Linda Greenhouse notes, what’s really at stake is the threat that we may “plunge into a world where conviction clothed in religious garb, no matter how untethered from reality, can be permitted to impair the rights of non-adherents to the benefits designed by a secular government to apply to all.”

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