Ever since the federal government mandated that health insurance cover birth control under the Affordable Care Act without cost-sharing--that is, no co-pay charges or deductibles--Catholic and other religious employers have been trying to undercut the requirement.
Fortunately, they've been batting zero at the appeals court level, most recently before the 2nd Circuit U.S. Court of Appeals in New York, which last week knocked down an assertion by two Roman Catholic high schools and two Catholic healthcare systems that their religious rights are violated by even the requirement that they put their objections to contraception on the record so the government, their insurers, and their employees can make other arrangements.
The 2nd Circuit thus joins six other appeals courts in finding that the notice requirement doesn't impose a burden on their religious exercise. No appeals court has ruled the other way. The 2nd Circuit ruled that "the only obligation actually imposed on plaintiffs is identifying themselves as religious objectors" through "a modicum of paperwork," and that doesn't come close to a burden on their religious observance.
Since the plaintiffs in these lawsuits include many religious institutions operating in the secular world, including the University of Notre Dame and Wheaton College, it's proper to examine how far they've been willing to go to try to impose their own religious views on thousands of employees and students who may not share them--even when the institutions are exempt from the mandate itself.
At issue in these cases is the "accommodation" the Obama administration provided to the religious employers objecting to the contraception mandate. According to the accommodation, religious employers that didn't want to provide these services to employees via their health plans merely had to file a form with their insurers and the Department of Health and Human Services stating that they objected. That filing would make the insurers, not the employers, responsible for providing the contraceptives--in some cases with profitable funding from the federal government.
Yet some employers thought even that procedure made them complicit with a sin. So the government offered a further accommodation: they merely had to send a letter identifying themselves as objectors. That still wasn't enough. Sending the letter, Notre Dame asserted, still made it a "conduit" between the health plans it contracted with and its employees and students. The law forced it to "contract with a third party willing to provide the very services Notre Dame deems objectionable."
The judges in these cases take the sincerity of the plaintiffs as, well, gospel. But as Appellate Judge Richard Posner of the 7th Circuit observed in May, their lawsuits aim to extend the reach of their religious objections awfully far--imposing them on private corporations (Aetna and its other insurers) and even on the federal government. No dice, Posner ruled in the Notre Dame case; the accommodation actually serves to "lift a burden from the university's shoulders."
His words were echoed last week by the three-judge appellate panel in New York, which found that the burden on the high schools and other plaintiffs was "merely one of notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service." Once they opt out, the law doesn't require them to play any role whatsoever in providing birth control to their female employees.
From the inception of the Affordable Care Act, the government has leaned over backward to meet the objections of religious employers. First it offered its accommodation to religious entities such as churches, then extended it to secular employers with religious affiliations, like Notre Dame. When some of these objected to submitting a government form attesting to their objections to the mandate, they were permitted to just send a letter. The Supreme Court, meanwhile, extended the rights of religious-affiliated employers to private companies owned by people claiming religious scruples.
The plaintiffs have moved from asserting their own right to not provide contraceptive services to asserting their right to prevent any entity with which they have even a tenuous business relationship from providing these services to their employees, and then to preventing the U.S. government from doing so in their stead. What's next? Asserting that employees who cash their paychecks shouldn't be allowed to buy contraceptives with their money?
The courts are right to call a halt to this trend. But the battle isn't over; although so far every circuit is in accord, nothing stops the Supreme Court from deciding to weigh in. Then all bets will be off, once again.
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