Birth Control and Obamacare: A Pious Hijacking at the Supreme Court
WHEN abstractions fuzz the mind, one tends to grope for a handy metaphor to make sense of it all. And when judges hear a case in which dozens of Christian charities and schools say that filling out a form designed to protect them actually constitutes a mortal threat to their beliefs, a skilled lawyer is wise to supply the berobed ones with a conceptual crutch. This is just what Paul Clement did last week during the oral argument in Zubik v Burwell, the latest challenge to Obamacare to reach the Supreme Court. Mr Clement twisted reality rather impressively when he said that the government’s aim was to “hijack” the health plans of religious organisations in order to provide their female employees with contraceptives. But two conservative members of the court who, some thought, might join the four liberal justices in ruling against the groups, seemed rather taken with the idea.
First, a little context. Regulations stemming from the Affordable Care Act require most employers to provide free birth control to the women who work for them. Some companies with grandfathered insurance plans are exempt from this mandate, as are houses of worship and closely held corporations with religious objections to birth control (per Burwell v Hobby Lobby Stores, a case decided in 2014). Zubik asks whether the Obama administration’s offer of an accommodation to religious non-profit groups who object to contraception is itself a violation of these organisations’ rights under the Religious Freedom Restoration Act, a law from 1993 that offers religious people a legal buffer above and beyond what the First Amendment guarantees. Plaintiffs ranging from East Texas Baptist University to the Little Sisters of the Poor, a charity that runs homes for the elderly poor, say that the accommodation—according to which the government arranges for the workers’ contraceptive coverage after an organisation expresses a desire to opt out of providing it—is a “substantial burden” on their religious liberty. Signing the form or mailing in a letter constitutes complicity in sin, they say.
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