On Tax Day we’re all reminded how much we really work just to pay off the government. But this week another government conscription of our services — Obamacare’s abortion pill and birth-control mandate — is triggering confusion from the government itself and from its defenders.
Parties in the Zubik v. Burwell cases, including, among others, the Little Sisters of the Poor and five Christian colleges represented by Alliance Defending Freedom, received an extraordinary instruction from the Supreme Court to file supplemental briefs discussing whether the mandate could achieve the government’s goal of delivering coverage without actually involving the religious-nonprofit organizations themselves, but still using insurance companies they hire.
Ed Whelan explained in several posts how the government’s filing dodged the question, as did similar pieces by Yuval Levin and Professor Michael McConnell.
But Mark Silk at Religion News Service read the briefs carelessly, leading him to assert he found a “gotcha” statement in the religious groups’ court papers. He is mistaken.
In January the religious groups told the Court that they “object to hiring or maintaining a relationship with any insurance company that is authorized, obligated, or incentivized to deliver the objectionable coverage to Petitioners’ own employees or students in connection with Petitioners’ own health plans, regardless of how that authority, obligation, or incentive is ‘triggered.’”
This is because the mandate doesn’t just force them to object — it forces them to be involved in the delivery process, whereby the abortion pill and birth-control coverage is provided not apart from but in connection with their health plans. As many justices recognized at oral argument on the case, the government is not just finding their employees and delivering coverage — it is “hijacking” the religious groups’ own health plans. The government essentially admitted this when it insisted that the coverage must be completely “seamless” with the religious groups’ health-insurance arrangements. And because many religious groups’ health coverage is “self insured,” they don’t hire an insurance company at all. Rather, Obamacare and other federal statutes are worded so that the government agencies cannot actually coerce seamless coverage on self-insuring religious groups unless (as the mandate does now) they require the religious groups to amend their health-plan “instrument” (contract) to make that objectionable coverage flow.
So in their supplemental brief this week, the religious groups said what they’ve been saying all along: Of course the government *could* pass regulations or, as would likely be needed, statutory amendments to provide the coverage in a way not “in connection with” the religious groups’ own health plan. Silk calls this a “surrender” because the separate coverage might still come from the religious groups’ own insurer (though, in many self-insured contexts, it might not, since no such insurer exists, and to force the plan administrator to do it without the religious groups’ involvement would likely require amending federal statutes).
Silk simply doesn’t understand the statutory framework or moral argument in this case. Congress never passed this mandate, so the government had to use arcane bureaucratic mechanisms to impose coverage that has a “seamless” connection with the religious groups’ health plans. The groups object to that involvement. They don’t object, in this lawsuit, to the government itself truly delivering the coverage without it being “in connection with” their own health plans or involving their authorization of the coverage.
Thus the religious groups were fully consistent in saying in their supplemental brief that “[t]he 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.” As framed, that kind of requirement need not be “in connection with” the religious groups’ own health plans the way the current mandate is, much less need it require an authorization from them or the use of their own plan contract. The mere stand-alone fact that it might use the groups’ external insurance company, if one exists, was never the objection. The objection was the overall connection with their plan in conjunction with their authorization of the arrangement.
As Paul Clement concluded for the religious groups at the Court’s oral argument, “my clients would love to be a conscientious objector, but the government insists that they be a conscientious collaborator. There is no such thing.”