The big fallacyaround the latestcontraception case


Now that the Supreme Court has agreed to hear the latest challenge to the Affordable Care Act’s guarantee of insurance coverage for birth control, it’s worth reiterating what the conflict at the core of these cases is really about.

The plaintiff employers — including several religious schools and an order of Catholic nuns that provides services to the elderly poor — refuse to provide coverage for certain contraceptives, which they believe (contrary to scientific consensus) induce abortions. The government has already agreed that these employers are not required to provide such coverage.

The problem is, they refuse even to notify the government or their insurers of their refusal, which would mean using a simple two-page form designed especially for the purpose. They argue that signing the form would make them complicit in the eventual provision of contraception, and thus would violate their faith.

But once the employer has opted out, it has no obligation to do anything. The government, or the insurer or plan administrator, takes over and provides the coverage.

The challengers know this. Their lawsuit, like several others before it, is a well orchestrated assault on the right of women to control their bodies, and thus the course of their own lives, by deciding if and when they will have a child.

As in the 2014 case Burwell v. Hobby Lobby Stores, where the court ruled that for-profit corporations may refuse to provide contraceptive coverage on religious grounds, the plaintiffs in this case rely on the federal Religious Freedom Restoration Act. Under that 1993 law, any regulation that imposes a “substantial burden” on religious practice must be in furtherance of a “compelling governmental interest” that cannot be achieved by less restrictive means.

The first seven federal appeals courts that considered the plaintiffs’ argument against signing the form threw it out, and for good reason: There is surely a compelling interest in ensuring that women have easy access to health care, including contraception, and it is hard to imagine a less restrictive approach than requiring employers simply to sign a form.

Yet in September, the federal appeals court for the Eighth Circuit upheld the employers’ argument on the grounds that they have a “sincere religious belief” that signing the form makes them “morally and spiritually complicit” in what they consider to be a sin. The ruling created a legal conflict among the federal courts, which the Supreme Court is now set to resolve.

This should not be a difficult case.

In a secular society, religious freedom demands respect and accommodation, not a veto over government action that benefits others who believe differently. As Justice Sonia Sotomayor wrote after the Hobby Lobby decision, thinking that “one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — doesn’t make it so.” Even in the warped Hobby Lobby opinion itself, the court seemed to suggest that the simple process of refusal “achieves all of the government’s aims while providing greater respect for religious liberty.”

***

QUOTE OF THE DAY

***

“Start by doing what’s necessary; then do what’s possible; and suddenly you are doing the impossible.”

comments powered by Disqus