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The nuns’ Obamacare contraception lawsuit isn’t about religious freedom

By Jill Filipovic, The Guardian
Friday, January 3, 2014 13:24 EDT
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Strict nun via Shutterstock
 
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Does religious liberty extend to the right to not have to fill out paperwork? That’s the latest position religious organizations are taking against the Affordable Care Act (ACA). It’s crazy, yes. But, welcome to the future of “religious freedom” litigation.

On New Years Eve, supreme court Justice Sonia Sotomayor issued an injunction blocking the Obama administration from implementing the aspect of the ACA known as the “contraception mandate”, which requires employee insurance plans to cover a range of preventative women’s health needs. The government has until today to respond. The injunction itself is standard legal procedure, and says little about how Sotomayor or the rest of the court will rule on the merits of the case. But the lawsuit itself, and the related suits challenging the contraception mandate, offer an increasingly troubling look at just how far peddlers of far-right ideology will go not just to claim their own right to live according to their beliefs, but to mandate that you and I do the same.

The ACA has a series of outs for religious employers who say medication like contraception violates their moral beliefs. It’s essentially three-tied: for-profit organizations have to cover contraception in their health plans; explicitly religious organizations like churches don’t have to provide contraception if they believe birth control is morally wrong; and religiously-affiliated non-profits that are neither owned nor controlled by religious groups do not have to provide contraception either, but they have to fill out a form certifying that they are religiously-affiliated, and then a third party administrator makes sure that employees can get contraception if they need it. The third-party administrator, and not the employer, pays for contraception coverage.

In the case that led Sotomayor to issue the injunction, an organization called the Little Sisters of the Poor Home for the Aged objected to the ACA’s contraception requirement. All the Little Sisters have to do is fill out a form and the organization will be under no obligation to pay for birth control for its many employees – which include home health aides, nurses, administrators and a variety of women who may not be Catholic or, like 98% of sexually active Catholic women, may choose to use a birth control method other than natural family planning – but apparently a form is too great an intrusion on their religious liberty.

Worth noting: the Little Sisters and other groups opposing the ACA contraception mandate claim that the hormonal contraceptives covered function as “abortifacients”, preventing an embryo from implanting in the uterus. That may be their sincerely-held belief, but it’s not a scientific one. In fact, studies indicate that the methods at issue prevent fertilization, not implantation. But facts and science are no match for faith.

The Becket Fund, a conservative organization representing the Little Sisters, claims (pdf) that the ACA restricts the religious freedom of the Sisters because the Sisters rely on a Catholic insurance company, the Christian Brothers Trust, for their company health insurance. The Christian Brothers Trust doesn’t provide coverage for hormonal birth control, IUDs or sterilization.

According to the Becket Fund, the Sisters are stuck between a rock and a hard place: they could continue to participate in the Christian Brothers Trust insurance coverage and refuse to designate the Christian Brothers as a contraception provider, which the Becket Fund says would result in ACA-related fines, or they could designate the Christian Brothers Trust to provide contraception coverage, violating both groups’ deeply-held religious beliefs. Alternately, they could drop health coverage all together, which would also put them at risk for fines. Or, they could ditch the Christian Brothers Trust and designate new group insurance coverage, which would cover contraception for employees without making the Sisters pay for or negotiate a single thing, but would again require them to fill out a form that supposedly violates their belief that employees shouldn’t be allowed to get contraception.

The Little Sisters aren’t paying for contraception even through a third-party-secured insurance plan; they certainly aren’t being asked to distribute it, and Catholic nuns aren’t being force-fed birth control pills. They simply have to sign a piece of paper saying they’re a religious group, and then turn to a third party to negotiate all the details.

Their claim that even this accommodation violates their religious liberty is telling. These ACA-related “religious liberty” arguments aren’t actually about the freedom to exercise your own religion, or the right to be free of doing something that violates your conscience. These assertions are about an overwhelming sense of entitlement on behalf of religious organizations to force anyone within their reach to adhere to their beliefs.

After all, the religious groups that oppose contraception have lost the cultural battle – overwhelming numbers of women rely on methods that these groups deem immoral. It’s not enough to simply encourage religious adherents to take sexual health advice from celibate old men. They have to use coercion and force.

The Little Sisters case is extra rich because, as it turns out, the Christian Brothers Trust insurance group can refuse to provide contraception and will face no fines or consequences. That’s because the Trust is a self-insured “church plan”, which means that the Little Sisters can designate the Christian Brothers as the third-party administrators, and if the Brothers still refuse to provide contraception coverage, the government can’t fine them (pdf). In other words: the Little Sisters can continue operating exactly as before, and nothing will happen.

The religious cases against the ACA pit two different interests against each other: the desire of religious organizations to have their employees adhere to a set of religious principles, and the interest of women to obtain a full range of basic healthcare. Contraception is one of the most commonly prescribed medications, and the consequences of denying it are stark – lack of contraception access can mean everything from serious health complications to economic hardship to death.

Religious liberty is also of fundamental importance. But religious liberty should end at your own nose, and not entitle you to demand that anyone within your reach adhere to your same principles. It certainly should not give any religiously affiliated organization carte blanche to argue that filling out a form is a substantial burden, and the form requirement itself is tantamount to religious discrimination. The American legal system privileges religious belief over many other kinds of deeply-held moral values, so while this line of argument wouldn’t hold up in court, it’s still worth asking: how is filling out a form a more substantial burden than, say, having to pay hundreds of dollars out of pocket for birth control, or having to travel a substantial distance and spend thousands on an abortion, or raising a child?

All the Little Sisters and religiously affiliated groups like them have to do is fill out a piece of paper. They will not have to pay for or in any way facilitate contraception access to their employees. That’s at least less of a burden than a lawsuit.

guardian.co.uk © Guardian News and Media 2014

[Strict nun via Shutterstock]

 
 
 
 
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