Contraception: A controversy that isn’t

Background: Hours before provisions related to the Patient Protection and Affordable Care Act (aka “Obamacare”) went into effect, U.S. Supreme Court Justice Sonia Sotomayor issued a temporary stay of requirements related to women’s health care (PDF) for some religious nonprofits. The court order was in response to an emergency request (PDF) filed by The Becket Fund for Religious Liberty and other attorneys on behalf of a group of Catholics, based in Colorado and Maryland, providing elder care services at about 30 facilities across the country and two religious-based insurance providers. The injunction request was made with Sotomayor because it was rejected by the Tenth Circuit, which she oversees. The government — specifically the U.S. Department of Justice — was told to respond to the complaints in the injunction request no later than Friday morning, which they did (PDF), and now Sotomayor can choose how to further handle the case, including tossing it back to the lower court, or handing it off to the full court.

Sotomayor, official photo

Sonia Sotomayor

Despite all the ink spilled on behalf of a temporary injunction of certain health care law provisions by U.S. Supreme Court Justice Sonia Sotomayor, true controversy has yet to materialize. At the end of the day, even if no ruling ever comes of the legal discussions prompted by Catholic-affiliated groups, current law does not require the religious nonprofit or its church-based insurer to offer employees health care that includes contraceptives.

The request for injunction, filed in part by The Becket Fund for Religious Liberty, does its best to link contraception to abortion while painting regulatory mandates as violations of religious freedom.

“… (the “HHS Mandate”) promulgated under the Patient Protection and Affordable Care Act will expose the Little Sisters of the Poor to draconian fines unless they abandon their religious convictions and participate in the government’s system to distribute and subsidize contraception, sterilization, and abortion-inducing drugs and devices. …”

Little Sisters of the Poor, a Catholic-affiliated group that provides elder care services, are lead applicants on the request and are joined by Illinois-based Christian Brothers Services and Christian Brothers Employee Benefit Trust. According to the court filing, the nuns are part of a faith that calls them to care for the elderly and “also precludes them from participating in the federal government’s efforts to subsidize and promote the use of sterilization, contraceptives, and abortion-inducing drugs and devices.”

The injunction request equates the requirement of a form¬† – introduced by the government in July 2013 as an accommodation for religious nonprofits (PDF) — to a “permission slip” or a wink-and-nod agreement for others to “sin” on behalf of the Little Sisters.

“… Applicants view completing the self-certification [form] itself as forbidden complicity with the government’s scheme … the regulations still require plaintiffs to take actions they believe are contrary to their religion. …”

Because the Little Sisters oppose on religious grounds the very thing that would allow them to opt-out of the preventative care portion of the health care law on religious grounds, the attorneys argue, the order will be subject to thousands, if not millions, in government fines. It is a point the nuns made clear in their response to the government’s response: “The Little Sisters and other Applicants cannot execute the form because they cannot deputize a third party to sin on their behalf.”

The dreaded form

Under the new health care law, all new insurance plans are required to provide free contraception as a part of essential benefits or preventative care. Also included on the list of health care “must haves” are disease screenings and vaccinations. When religious groups objected, the Obama administration (Health and Human Services, specifically) made accommodations in regard to the faith groups. In addition, an older law — the 1974 Employee Retirement Income Security Act — already exempts church plans from regulation.

To qualify for the exemption, the religious group signs a waiver that is presented to their insurance company. In the case at hand, the Little Sisters are saying they cannot complete and sign the waiver for exemption.

“This policy ensures that eligible organizations and their [insurance] plans do not contract, arrange, pay, or refer for contraceptive coverage, and that such coverage is expressly excluded from their group health insurance policies,” wrote HHS in its introduction of the form and accommodations.

Contraception is not abortion

When many religious conservative groups first began to organize in opposition to health care reform, much focus was given to a so-called “abortion mandate.” Over time, and as the legislative discussion has transformed into law, the semantics have morphed into discussions of a “contraception mandate.” The want of some to connect the services provided under the essential benefits/preventative care requirements of the law, led HHS to directly address such concerns when it rolled out the religious accommodations in July 2013:

“Some commenters expressed concern that the final regulations violate the Religion Clauses of the First Amendment or certain federal restrictions relating to abortion. The regulations do not violate the Free Exercise Clause because they are neutral and generally applicable. They regulations do not target religiously motivated conduct, but rather, are intended to improve women’s access to preventative health care and lessen the disparity between men’s and women’s health care costs. And the regulations are generally applicable because they do not pursue heir purpose only against conduct motivated by religious belief. The exemption and accommodations set forth in the regulations serve to accommodate religion, not to disfavor it.

“The final regulations also do not violate the Establishment Clause. The exemption and accommodations set forth in the regulations are not restricted to organizations of a particular denomination or denominations. Instead, they are available on an equal basis to all religious organizations affiliated with any and all religions.

“Finally, the regulations do not violate federal restrictions relating to abortion because FDA-approved contraceptive methods, including Plan B, Ella and IUDs, are not abortifacients within the meaning of the federal law. … Further, these regulations do not require nonprofit religious organizations that object to such contraceptive methods to contract, arrange, pay, or refer for such services.”

The full list of recommendations regarding women’s preventative health care by the nonpartisan Institute of Medicine is available in a July 2011 report brief.

The real contraception controversy

In November, the Supreme Court agreed to hear arguments in two separate cases that are somewhat similar to the present case. While the current temporary injunction is in relation to religious nonprofits, the two upcoming cases involve for-profit companies. Specifically, they involve Hobby Lobby, a national craft store chain, and Conestoga Wood Specialties Corp., a Pennsylvania-based group of cabinetmakers.

As stated above, the health care law has required all insurance policies to provide preventative care, which includes contraceptives. While the government has made accommodations for religious organizations, such as churches, and further accommodated non-church-affiliated but still religious non-profits, no such waivers have been offered to the vast majority of companies that provide insurance coverage for 50 or more employees. The two companies involved in the suit are arguing that since their companies, which do not provide specific spiritual or religious services to the public, were founded by individuals with certain religious viewpoints, the companies themselves cannot be forced to provide medical services deemed religiously unacceptable or immoral.

There is no denying that the cases could have significant and, yes, catastrophic consequences for women who rely on employer-based insurance services. (An estimated 10.7 million American women use oral contraceptives and more than half of all states — 28 — require insurance policies that cover prescription drugs to also cover all FDA-approved contraception — drugs and devices — as well as related medical services. While some states offer various levels of religious objection, Iowa does not.)

The underpinnings of the cases, however, could have a significant impact or even expansion of an earlier Citizens United case that essentially determined corporations to have certain rights previously held only by persons or individuals.

The case will most likely be argued on grounds of “neutrality,” which means the court will be asked if the government applied the law equally and did not single out any one religion or religious practice, as well as in terms of the Religious Freedom Restoration Act of 1993 (RFRA), which offered enhanced protections of the First Amendment that prohibits the government from imposing a “substantial burden” on a person’s “exercise of religion.” The government, according to the RFRA, must prove a “compelling state interest” in relation to the law, which must be implemented by the “least restrictive means.” Although the government will argue compelling interest in terms of overall public health, the very fact that exceptions and accommodations have already been established for religious entities and organizations may undermine the assertion.

At the core of this second argument, however, is whether or not a corporation is protected by the law that specifically intends to protect “a person’s exercise of religion.” Even if the court has deemed corporations to be persons, are the Justices willing to stretch the ruling further to say that corporations can exercise a religion?¬† And, even if that determination is made, would the historical intent of religious protections be served by allowing a corporation to potentially and essentially trample upon the religious beliefs of its employees?

Arguments in those cases are scheduled for the spring and any decision by the court isn’t likely before June.

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A Republican turned Democrat who is now registered with no party, Lynda is the founder of Essential Estrogen. She and her husband live in eastern Iowa with their two (mostly good) children and two (mostly good) dogs. Their oldest child was turned loose on the world in 2011 and is making her home in another state. A journalist, essayist and hobby fiction writer, Lynda's work has been seen in Salon, RH Reality Check, the Atlantic, The Iowa Independent, UK Guardian as well as other online and traditional publications. She has also appeared as a guest on various television and radio news shows.

5 Responses to “Contraception: A controversy that isn’t”

  1. January 11, 2014 at 6:22 pm #

    This shouldn’t be an issue.

  2. Camille
    January 12, 2014 at 5:13 am #

    As a conservative Protestant, I’ve always been opposed to both artificial contraception and divorce and remarriage as unscriptural. “Be fruitful and multiply.” “A man who divorces his wife and marries another woman is committing adultery.” Until conservative Protestants embrace both of these verses, they will continue to be unorthodox Christians and unscriptural.

  3. Camille
    January 12, 2014 at 9:40 am #

    True Christians just don’t want to PAY for other people’s contraception. I don’t care what you do in your personal life, just don’t expect me to subsidize it.

  4. RealYoda
    January 12, 2014 at 10:43 am #

    Or women could just take responsibility for themselves and pay for their own prescriptions if they want to be promiscuous.

  5. Deb
    January 12, 2014 at 10:46 am #

    Contraception is a controversy because it ends a life. Not that you care.