The end-of-term decision by the U.S. Supreme Court that ruled Hobby Lobby and other “closely held” for-profit companies do not have to comply with the Affordable Care Act’s contraception mandate spawned a storm of criticism from some liberals as an attack on the rights of women; many conservatives, however, touted the ruling as an important First Amendment religious freedom victory.
“Hobby Lobby is a total victory for for-profit companies,” Martin Nussbaum told Our Sunday Visitor. Nussbaum is general counsel for the Catholic Benefits Association, an organization of Catholic employers that provide either group health insurance or self-funded health plans that are in accord with Catholic teaching to their employees. “This is very positive for the nonprofits. This [the federal mandate that the companies must provide insurance coverage to employees that includes 20 abortifacients/contraceptives] was a burden on their free exercise of religion.”
Nussbaum and the Catholic Benefits Association are fresh off a win in the U.S. District Court in Oklahoma City, where it won a temporary injunction against the federal Department of Health and Human Services mandate. The insurance company represented more than 400 Catholic employers and nearly 2,000 Catholic churches that claimed the mandate violated their rights provided by the Religious Freedom Restoration Act. The judge in the case found that they would likely prevail on the merits of their claim in a trial.
“It is not for the court to decide if someone is not substantially burdened by a federal regulation if there is not a less restrictive option,” said Nancy Matthews, a consultant for the U.S. Conference of Catholic Bishops Ad Hoc Committee on Religious Liberty. “It is not for the court to substitute its own theology.”
Form not required
Critics assert that a religious corporation has a way out of the contraceptive mandate by the accommodation permitting it to use a federal waiver form — Form 700: Certification for Safe Harbor Exemption from Coverage Mandate. The form states: “This form is to be used to certify that the health coverage established or maintained or arranged by the organization listed below qualifies for an accommodation with respect to the federal requirement to cover certain contraceptive services without cost sharing.”
Under the federal accommodation, if a religious corporation objects to the contraceptive mandate, its insurance company would provide the contraceptives to the corporation’s employees at no cost to the employer, provided it makes the request. The payment instead would come from taxpayers.
Not so fast, said Nussbaum.
“I don’t think [the Hobby Lobby decision] is at all determinative whether or not the mandate continues to burden [nonprofits’] religious freedom,” Nussbaum told OSV. He pointed to a preliminary finding by the Supreme Court in early July that Form 700 is not required in order for a nonprofit to deny insurance coverage for abortifacients/contraceptives based on religious belief.
The accommodation, a fail-safe in the eyes of the Obama administration, is akin to the Civil War conscription exemption that permitted the wealthy or those with religious objection to warfare to pay a surrogate to fight in their place, Nussbaum said.
“The form triggers the engagement of a third party” on behalf of the company to provide the insurance to do that which the company objects to, and that is “immoral,” Nussbaum said. “That constitutes material cooperation with evil, because it is still triggering the delivery of those services.”
Equality for women
The critics of the decision, including the three female associate justices of the court, construe the outcome as part of a continuing “war on women,” a shibboleth wielded by the media, politicians and activists, said Teresa Collett, a constitutional law professor at University of St. Thomas Law School.
Collett, who is currently in Rome to teach a summer session and to serve as an adviser to the Pontifical Council for the Family, contends that one of the dissenters, Justice Ruth Bader Ginsburg, holds a view of women’s equality shared with pro-abortion and pro-contraception advocates.
“They believe that a woman’s fertility is a barrier to their equality with men,” Collett said. “Ginsburg believes that contraception and abortion provides that knowing consent for women to achieve equality with men. Authentic equality must be grounded in an acceptance and valuing of a woman’s fertility in the creation of a workplace where women are not hindered by bearing children and men are not held back by observing their roles of fathers and husbands.”
The religious liberty issue was narrowly crafted in the Hobby Lobby decision, legal experts said. The court noted that appeals courts have adjudicated claims by religious nonprofits like hospitals, colleges and charities.
“It seems the court is open to a fresh look,” Nussbaum said. He said that nonprofits have been winning religious liberty cases in the lower courts and he expects that the Supreme Court will weigh in again.
A fresh look involving a nonprofit would inevitably raise the objections to the accommodation, perhaps along the lines of the brief that Nussbaum filed in the Oklahoma case. In response to the defense, it was asserted that a nonprofit “must no more sign and deliver the form than Eve should have tasted the serpent’s fruit. ... Plaintiffs see the signing and delivery of the form as material cooperation with evil because of the cascading effects.”
Here are those effects of having to submit Form 700 for the accommodation, according to Nussbaum’s brief:
• It amends the employer’s plan, creating a second binder of contraceptive/abortifacient coverage.
• It makes the third-party administrator the plan-and-claims administrator for the second binder of the services.
• It requires the third-party administrator to provide free services.
• It requires the administrator to give employees notice of the availability of free contraceptive/abortifacient services.
• It reimburses the administrator for providing the services and guarantees it a 10 percent profit for doing so.
• It gags the employer from communicating with the administrator about not providing the services.
• It gives rise to scandal because the employer so blatantly acts contrary to the Catholic values it espouses.
The seven cascading effects of submitting to the accommodation is tantamount to dancing with the devil as far as the religious nonprofits are concerned. The Supreme Court will decide who will pay the piper.
Joseph R. LaPlante writes from Rhode Island.