Politics & Policy

The Government’s Dishonest Defense of Obamacare’s Contraceptive Mandate

(Christy Thompson/Getty)

Linda Greenhouse’s column in yesterday’s New York Times paints a dramatically distorted picture of the religious-liberty challenges that various nonprofit religious groups have brought against the Obama administration’s contraceptive mandate.

The nonprofit plaintiffs in these cases — faith-based schools and organizations such as Catholic Charities and Thomas Aquinas College — have a religious objection to hiring any insurance company that will provide their employees with coverage for abortifacients or contraceptives. They believe that hiring or maintaining a contract with any such company would make them complicit in sin. But the government’s regulatory mandate forces the plaintiffs to do exactly that: hire a company that will provide the objectionable coverage to their own employees in connection with their employer-based health plans.

Under the mandate, the plaintiffs will be subject to crushing penalties if they drop their health plans. And they will also be subject to crushing penalties if they attempt to contract with an insurance company to provide health coverage in a manner consistent with their religious beliefs — i.e., plans with a full range of health-care services that exclude coverage for abortifacients and contraceptives.

The government’s strategy in this case has been to distort and obscure the nature of the plaintiffs’ religious objection, and it has worked like a charm so far. The government has spun a narrative in which plaintiffs are somehow eligible for an exemption from the contraceptive mandate and are stubbornly objecting only to the simple requirement that they file a two-page form asking for the exemption. But that is completely and utterly false. In fact, there is no way for plaintiffs to get an exemption, because there is no way for them to avoid hiring and maintaining a contract with an insurance company that will provide the objectionable coverage to their employees.

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The government’s false narrative is based on a feature of the regulations that the government has misleadingly labeled an “accommodation.” Under this “accommodation,” religious plaintiffs have the option of filing a form that relieves them of the obligation to pay for the objectionable coverage. Once they file this form, their insurance company becomes obligated to pay for the coverage itself, without billing the plaintiffs.

But this supposed fix does not accommodate the plaintiffs’ religious beliefs at all. It still forces them to hire and maintain a contract with an insurance company that will provide the objectionable coverage to their employees in connection with an employer-based health plan. Maintaining this relationship is exactly what the plaintiffs find religiously objectionable: They believe that it makes them complicit in sin to offer their employees a health plan that comes with contraceptive and abortifacient coverage. Indeed, by filing the form to invoke the “accommodation,” the plaintiffs effectively amend their own health plans to make it possible for the objectionable coverage to be provided by their own insurance company.

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Pundits such as Greenhouse have expressed puzzlement that the plaintiffs could have a religious objection to this arrangement, but it is really quite simple. The plaintiffs believe that when they offer an employee health plan through an insurance company and the company provides objectionable coverage to employees who enroll in the plan, the plaintiffs have aided and abetted the provision of the coverage: They have established the health plan, invited their employees to enroll, and maintained an ongoing connection between their employees and the insurance company that provides the coverage.

The moral principles underlying this religious objection are based on common sense. Imagine that you hire a piano tutor for your children and learn that the tutor is supplying them with free cigarettes. You might object to maintaining the arrangement, regardless of whether you are paying for the cigarettes. Or imagine you have a religious objection to alcohol and learn that the caterer you have hired for your wedding is going to serve free booze to all of your wedding guests. You might want to fire the caterer.

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The point is that people routinely exercise their moral judgment when deciding whether to hire someone to provide a service. You probably don’t want to hire a service provider that you know will provide the service in a way that clashes with your deeply held moral or religious principles. You don’t want to be involved. And when the government forces you to be, it compels you to act against the dictates of your conscience.

The Religious Freedom Restoration Act (RFRA) was passed to address exactly this kind of predicament. It says that the government can’t force people to act contrary to their religious principles unless it has a “compelling” interest in doing so and there is no other way to achieve its interest without burdening the religious objector.

The government is effectively hijacking private religious organizations’ employer-based health plans to deliver coverage that the organizations find morally offensive.

In the case of the contraceptive mandate, it shouldn’t matter whether you think the government has a “compelling” interest in providing abortifacient and contraceptive coverage, because it should be clear to everyone that there are ways to provide the coverage without piggybacking on the employer-based health plans of religious objectors. If the government wants to provide abortifacients and contraceptives to the employees of Catholic Charities, it has a large number of ways to do so without using the insurance company that Catholic Charities has hired.

The government’s regulations thus needlessly force objecting religious organizations to stay in an objectionable contractual arrangement with the provider of the abortifacient and contraceptive coverage. They also obligate the organizations to provide updated information on an ongoing basis about their employees and dependents so that the objectionable coverage can be more readily offered and delivered under the government’s regulatory scheme. The government is effectively hijacking private religious organizations’ employer-based health plans to deliver coverage that the organizations find morally offensive.

#related#Greenhouse and the government tell Catholic Charities and the Little Sisters of the Poor that, since they are supposedly relieved of the obligation to pay for the objectionable coverage, complying with these regulations is no big deal. But under the law, that is not their call or a court’s call to make. And when it comes to Catholic principles concerning sin and complicity, it’s not about the money.

Catholic Charities, Cardinal Wuerl, Bishop Zubik, and the various other plaintiffs in these cases have a sincere religious objection to facilitating the delivery of abortifacient and contraceptive coverage by filling out the so-called accommodation papers and allowing their health plans to be used as conduits for the coverage. These organizations and the wonderful individuals who run them don’t expect everyone to share their religious beliefs, and they are not trying to block women from accessing contraceptives or abortifacients, which are ubiquitously available and can be provided in any number of ways. The plaintiffs just don’t want to be forced to help deliver them.

Paul M. Pohl and Noel J. Francisco are counsel of record for nonprofit Catholic entities in the U.S. Supreme Court. They are partners in the law firm Jones Day, which is handling religious-freedom cases for religious organizations across the country, including cases filed by the Archdiocese of New York, the Archdiocese of Washington, and the Diocese of Pittsburgh.


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