Beware of a Supreme Court ‘Solution’ for the Little Sisters

Last week, the Supreme Court took the unusual step of asking the parties in Little Sisters of the Poor v. Burwell to submit additional briefs describing how employees might get access to no-cost contraceptives through insurance without conscripting unwilling, religiously affiliated employers into the transaction. In other words, the Court seems to be searching for a way out of another in a string of legal messes the Obama administration has created over the past five years.

The case centers on the so-called HHS mandate and the supposed “accommodation” to the mandate the administration has put forward for the Little Sisters and other similarly situated organizations (most of which are Catholic). The HHS mandate requires employers to include in their insurance offerings coverage of all contraceptives, including products that can induce early-pregnancy abortions. The mandate is not a response to a legal requirement of Obamacare. The Affordable Care Act says nothing about free contraception (if it did, that would have been one more controversy impeding its enactment). Rather, the HHS mandate is a regulatory requirement that the administration created as part of its implementation of a larger provision of law requiring coverage of “preventative services.”

From the beginning (the first rule on the mandate was issued in 2011), the administration has stubbornly refused to give Catholic hospitals, nursing homes, universities, and social-service agencies a blanket exemption from the HHS mandate, although Catholic churches and other “houses of worship” are exempt. The administration argues that too many employees work for big Catholic institutions, and that these employees would suffer from lack of free contraception. Instead of an exemption, it has pushed its “accommodation” as the answer.

The accommodation allows religiously affiliated employers who provide notification of their objections to meeting the requirements of the HHS mandate to secure insurance for their employees that excludes the objectionable products and services. The government then requires the insurance companies to notify the workers that they will get free contraceptive coverage anyway, through a special arrangement directly with the insurer. The result is therefore exactly the same as if the Little Sisters purchased insurance compliant with the HHS mandate. The employees get insurance coverage that pays for 100 percent of the cost of all contraception, including products that act as abortifacients. Put another way, it is impossible for the Little Sisters and the other plaintiffs in the case to offer health insurance to their workers that does not result in full coverage of all contraceptive products and services.

This is the fundamental problem with the administration’s accommodation — which really provides no accommodation at all. The Little Sisters know, in advance of deciding to offer health insurance to their workers, that if they do so, it will necessarily result in coverage of products and services that the Catholic Church teaches are immoral to use. This is an impossible entanglement.

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Source: Little Sisters of the Poor & the Supreme Court’s Contraception Compromise