Supreme Court Justice Sonia Sotomayor made a reasonable decision when, on New Year's Eve, she temporarily blocked implementation of the Affordable Care Act's contraception coverage mandate in a case brought by a religious order of nuns that operates homes for the poor and elderly in Catonsville and elsewhere. It certainly doesn't hurt to wait a few days and hear the government's argument for immediate implementation. But the 11th hour drama doesn't change the fact that the contraceptive coverage requirement is good policy, and the mechanism for groups like the Little Sisters of the Poor to avoid violating their religious tenets is reasonable.
Birth control pills are often used for medical reasons that have nothing to do with preventing pregnancy. It would make no sense for women who use them, for example, to treat endometriosis to be forced to pay more for them than another drug. Moreover, the cost of unplanned pregnancy on society as a whole and the health care system in particular is enormous. Two years ago, the Guttmacher Institute, which advocates for reproductive health and rights, estimated that the cost to taxpayers was more than $11 billion annually. Making birth control as readily available as possible is unquestionably a good investment for the health care system. That's why the Institute of Medicine recommended that it be included in the preventive care coverage of the Affordable Care Act in the first place.
Religious employers like churches are exempt from the contraceptive coverage requirement, and they always have been. For-profit companies whose owners object on religious grounds to contraception are not exempt, though that issue is headed for the Supreme Court via a pair of unrelated lawsuits. Non-profits that are affiliated with religious institutions — like the Little Sisters — fall into a third category that allows an avenue for avoiding the requirement while still giving lay employees access to birth control.
Last month, U.S. District Judge William J. Martinez agreed with the nuns that they were a religious organization under the act even though they are not a church. Based on the group's history and mission, he said, all they had to do to avoid the substantial penalties the government levies against employers who violate the law was fill out and submit a form to the group administering their employee health care plan. The form amounts to nothing more than a self-certification that "on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization."
That, presumably, should not be offensive to the nuns' religious beliefs; rather, it affirms them. What they seem to be objecting to is the fact that the form also includes instructions for how the health plan administrator should process claims for contraceptive services to ensure that the Little Sisters are not involved in either the paperwork or payment for them. Since the nuns' health plan administrator, Christian Brothers Services, another Catholic charitable group, says it has no intention of providing contraceptive coverage, that, too, would not seem to be a problem. As Judge Martinez put it, the nuns' continued objection "ignores the factual and legal realities of the case."
Whether the Little Sisters or any similar institution likes it or not, their employees are free to use birth control and doubtless do. Right now, they do so by using one form of the compensation they are provided as employees — their salaries. Yet no one would argue that this fact makes the nuns complicit in the use of contraceptives, or that they should be allowed to prohibit their workers from shopping in stores where birth control is sold. Under the Affordable Care Act, the workers will have the option of using another form of their compensation — their employer-subsidized health insurance plan — to obtain birth control. The fact that the contraceptives will thus cost the workers less out of pocket doesn't change the fundamental equation. For that matter, the payroll taxes the Little Sisters and other groups pay for their employees may well also support government activities to which they have religious objections.
That said, finding the balance between protecting the beliefs of organizations like the Little Sisters and those of its employees is tricky, and the nuns' contention that they faced an impossible choice between committing what they see as a sin or paying hefty fines should not be taken lightly. For that reason, Justice Sotomayor's grant of a reprieve at least until the government can respond on Friday makes sense. But it doesn't mean the nuns will or should ultimately prevail. One of the consequences of living in a pluralistic democracy rather than a theocracy is that faith groups must accept that they will be touched in some way by beliefs, practices and ways of living of which they disapprove. That's not some new invention of the Affordable Care Act.
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