This piece is from the Guardian and it comes with some of the paper’s usual irritating baggage, but it is still worth reading as an examination of the factual background to the Little Sisters HHS case:
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….
The Becket Fund [a fund I note named after a priest ‘martyred’ for his belief in religious legal privilege], a conservative organization representing the Little Sisters, claims 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….
[A]s 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. In other words: the Little Sisters can continue operating exactly as before, and nothing will happen….
Food for thought.
The court will decide what it decides and (not being too familiar with the constitutional case law) I have no opinion on how that could—or should—spin out, but, as a matter of commonsense and of basic equity (none of which, of course, need be particularly relevant where the law courts are concerned) it remains hard for me to see these rules as an assault on religious freedom. That the Roman Catholic Church has also long been a supporter of universal healthcare only adds irony—and a degree of insult—to the mix.