A Bitter Pill?

birth-control-pillThis 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.

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8 Responses to A Bitter Pill?

  1. Alan says:

    While I, as a conservative Catholic, also appreciate the irony of those who voted for Obama and agitated for universal healthcare now facing the results of their choices, the law as it stands still forces most Catholics to violate their beliefs in order to get health insurance.

    As a matter of commonsense and basic equity, there is no real reason why this aspect of the ACA had to exist other than as a wedge issue and a cudgel to beat on the Right. Access to contraceptives has not been a problem and long running studies have shown access not to be a factor in the likelihood of unplanned pregnancies.

    I don’t know how you can claim to be of the “Right” if you believe that forcing people to violate their beliefs for no real benefit to society is “right”.

    Passing off the responsibility to another party is merely a fig leaf and a de facto admission that you support the law but don’t want to be tarnished by it. The assertion that the Christian Brothers Trust won’t have to provide it and won’t face any penalty is a side issue. It is a mere gaming of the system while the Sisters and challenging the very validity of the system.

  2. Andrew Stuttaford says:

    Alan, “most” Catholics?


    “Some 98 percent of sexually active Catholic women in the United States have used contraceptive methods banned by the church, research published on Wednesday showed.”

    Just one survey, but still…

    On the broader topic, there are very few who would argue that an individual’s right to follow the teachings of his or her religion must *always* trump the law of the land (I haven’t heard much from Cardinal Dolan, incidentally, on the recent Utah polygamy case, a case with First Amendment implications: I wonder why not). The question then becomes where one draws the line: In this instance I find it hard to see this (diluted) HHS mandate as part of an assault on religious freedom.

    One way to reduce this problem would be to remove the requirement that so many categories of contraceptive pill require a prescription. I’m not sure that the Catholic bishops would be too supportive of that.

  3. John says:

    Of course, the real solution is to allow all insurance companies, religious or not, to decide whether or not to cover contraception, or anything else for that matter.

  4. WmarkW says:

    I’m still waiting for a test case involving a Jehovah’s Witness employer’s right to non-cover surgery requiring blood transfusion.

  5. ere says:

    Don’t let Her Holiness Kathryn Lopez see this!

  6. djf says:


    You’re probably right that there is no constitutional violation here, although there may be an issue under the federal statute. The point is that Obama’s refusal to grant even religious institutions (let alone closely held for-profit businesses) an exemption from this requirement – something that would not have affected the grand scheme of Obamacare at all, nor would it have had any real impact on access to contraceptives – is a cynical gratuitous act intended to stir up his leftwing base and to create a political controversy he thinks he can exploit. Regardless of any constitutional or statutory violation, Obama demonstrates utter contempt for the largest religious body in the United States by demanding that its institutions implicate themselves in the violation of the Church’s teachings. I myself am not Catholic, or even Christian, and share your disdain for the Catholic bishops’ support for Obamacare. But I cannot see that the Church, or Protestant institutions that share its objections to abortion, deserve to be treated with this kind of ill-concealed contempt.

  7. Richard says:

    The certifications that ObamaCare requires are essentially vouchers good for free contraception. Who pays for it is irrelevant. If the sisters were being forced to hand out vouchers good for free subscriptions to Hustler, the First Amendment implications would be clearer. At least, the sisters deserve better than the lefty sneer, “Oh, I guess your religion forbids you from filling out forms now, huh?”

  8. LiveFreeOrDie says:

    Whenever I read articles (and comments!) like this, the word “disingenuous” always comes to mind.

    Religious true-believers, unlike presumably most readers of this site, always really want to either 1) force, or 2) at the very least proselytize, others.

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