Contraception in the court

Representatives of The Little Sisters of the Poor and a host of other non-profit plaintiffs appeared before the now-eight justices of the U.S. Supreme Court Wednesday to argue that the Affordable Care Act infringes on their religious beliefs. Their objection centers around employee contraceptive coverage — but not about who pays for it (the non-profits don't) or about who advises employees about the existence or exercise of that benefit (they don't have to do that either).

No, as was made clear in 90 minutes of oral arguments, what bothers the various plaintiffs in the seven consolidated cases is that the mere act of authorizing an exemption to the ACA's contraception mandate — so that the various hospitals, charities, schools and other non-profits don't have to pay for, or be otherwise involved with, the coverage for their employees — is itself a violation of their religious faith. And while the Little Sisters and others may truly believe this is so, it suggests that no reasonable accommodation is possible short of the outright exemption already provided churches and other religious groups.


Here's the problem with that: What about the millions of women whose rights to contraception are put at risk? Social conservatives like to mock "free contraception" as some kind of handout or luxury or perhaps evidence of low morals. But in reality, the enhanced availability of contraceptives has enormous health and social benefits reducing, among other things, the need for costly abortions. And if religious organizations can veto this medical benefit, what other civil rights might be infringed by playing the "church card?" Or, to put it in a context that might prove more meaningful to political conservatives, what rights might be overruled by the "mosque card?" Or perhaps the "paganism card?"

Making matters even more complicated is that the death of Justice Antonin Scalia may have fundamentally changed the court's posture on these issues. Mr. Scalia was one of the five justices who formed the majority in the Hobby Lobby case which held that certain closely-held for-profit corporations didn't have to follow the ACA's contraception mandate. That leaves the court in a potential four-four deadlock that could leave conflicting lower court rulings in place and thus have the mandate in effect for some women but not for others.


This has gotten beyond absurd. The ACA does not force the Little Sisters or Pittsburgh Bishop David A. Zubik (the lead plaintiff in the consolidated cases) to pay for contraceptives. Insurance companies pay for them. It doesn't force the plaintiffs to even tell their workers about this benefit; that's up to the insurance companies, too. And if they still regard their truly tenuous connection to the contraception mandate as a violation of their faith? They already have an option under the law to discontinue providing health insurance coverage, pay a penalty and allow their workers to purchase coverage for themselves.

Obamacare haters like to invoke the standoff as a reason (among many) that the health care law ought to be overturned, a broken record of an argument that conveniently ignores the millions of Americans who now have health insurance thanks to the ACA. But they are correct in at least one regard. This dispute does concern the fundamental right to exercise one's religion: It's about the ability of women of childbearing age working for religious non-profits to practice their own faith and not be forced to follow the religious tenets of their employer. Those are the rights that were shamefully overlooked in the Hobby Lobby decision.

Meanwhile, the possibility that this important case may be stuck in limbo only underscores the importance of filling the Scalia vacancy in a timely manner. Senate Majority Leader Mitch McConnell's refusal to even meet with Judge Merrick Garland, President Barack Obama's nominee, is not only an embarrassment to his party (in what has been shaping up to be a particularly embarrassing year for that self-destructing institution), but likely counterproductive to his own cause. Most recently, Senator McConnell has indicated that he would not consider Judge Garland even if a Democrat is elected president — even though such a choice would likely lead to a far more liberal nominee.

From the Republican attacks against Planned Parenthood to the party's widespread efforts to diminish access to reproductive health services including abortion at the state level, the GOP's war on women appears to be rolling on — with only a downsized Supreme Court and, ultimately, the ballot box, left to block its freedom-crushing path.