The US Supreme Court will rule on freedom of religion

The US Supreme Court will consolidate more than half a dozen cases presenting the question of just how far employers may object on religious grounds granting their employees birth control coverage in their health insurance packages. The cases are likely to be consolidated under the name Zubik v. Burwell, and they represent the Court’s second foray into this controversial issue in less than two years. The last foray was the Court’s decision in Burwell v. Hobby brought by employers seeking to exempt themselves from federal rules intended to help working women obtain birth control and abortion coverage from their employers. The argument then against these rules was that they were prevented on religious grounds to do so and that birth control was seldom a health issue but a matter of "convenience".
In Zubik v. Burnwell, the Supreme Court will hear arguments starting on March 23rd about Religious exemptions for contraception coverage in employer-sponsored health insurance plans under the Affordable Care Act (Obamacare).

Zubik v. Burwell consolidates seven cases (Priests for Life v. Department of Health and Human Services; Roman Catholic Archbishop of Washington v. Burwell; East Texas Baptist University v. Burwell; Southern Nazarene University v. Burwell; Geneva College v. Burwell; and The Little Sisters of the Poor v. Burwell). Various religious schools, colleges, hospitals and charities, notably the Little Sisters of the Poor Home for the Aged in Denver, are being forced to submit to this law against their deep religious beliefs.

Zubik and his fellow petitioners object on religious grounds to what has become known as the Obamacare contraception mandate, which makes free birth control and abortions available to students and employees of religiously affiliated institutions such as schools, hospitals and social service agencies, and they want to be exempt from it.

The Zubik plaintiffs rely on a law called the Religious Freedom Restoration Act (RFRA). The Supreme Court said in Hobby Lobby that, under the Religious Freedom Restoration Act (RFRA), the Department of Health and Human Services (HHS) could not apply its contraceptive mandate to non-for-profit corporations when doing so would violate the owners’ sincere religious beliefs.

The question before the Supreme Court now has to do with the HHS established rule that exempted churches and their “integrated auxiliaries” from the mandate altogether but required other religious organizations to submit a self-certification that would lead insurance providers or third-party administrators to cover the costs of the objectionable contraceptives and abortions. The Little Sisters, Reverend David Zubik, and the other plaintiffs believe that filing this self-certification makes them complicit in sin, in violation of their sincerely held religious beliefs. "We still have to sign off," Zubik said. "In reality, we’re giving the green light that says we’re agreeing that you can provide these services, and that raises the issue that we’re being asked to do something that goes against our faith."

Therefore, if forced to act against their beliefs, religious institutions will have no choice but to close their human services, such as hospitals, schools, hospices, etc. US faith-based organizations contribute human services domestically and abroad that are staggering in their size and scope. Millions of persons are served, in some instances even by a single faith-based organization. The ramifications of losing such services, which are often life-saving for the needy people served, is sobering to contemplate. The charitable services provided by faith-based organizations have a distinctive character and value that government cannot match or replace. Were it to try, the sheer economic value of those services, even as to a single locality or service type, easily measures in the millions of dollars.

Those are facts that should be taken into consideration by the Supreme Court. In addition, the US government is giving in the Affordable Care Act a very hard moral choice to priests and lay people of all denominations to choose between following their faith or following the law! There is no real reason why laws may not be drafted with proper options respecting religious beliefs. Non-believers have many other choices to get contraception and abortion insurance coverage with no need to force believers to support them.

Just remember that Zubik v. Burnwell is a case having hearings before the US Supreme Court since March 23rd. This case carries the last names of the Catholic bishop of Pittsburgh (David A. Zubik) and President Barack Obama’s secretary of Health and Human Services (Sylvia Burwell).

The Affordable Care Act’s regulations (Obamacare) require virtually all employers to provide health insurance to their employees. They also require health-insurance companies to include contraceptive coverage for women in their plans at no additional cost. Under those regulations, religious nonprofits that object to contraception may file a one-page form with the federal government, at which point the insurance company will directly provide the coverage to their employees without further involvement from the nonprofit. But a group of religious nonprofits, ranging from private Christian universities to the Little Sisters of the Poor, argued that filing the form still requires them to facilitate something their religious beliefs abhor.

Let us remember as well that in Burwell v. Hobby Lobby case two years ago, a 5-4 majority (including Chief Justice John Roberts and Justices Sam Alito, Clarence Thomas, Anthony Kennedy and Antonin Scalia) ruled that the Obamacare regulation was a substantial burden on the religious exercise of Hobby Lobby’s owners, who did not want to cover abortifacients.

Nowadays, the Supreme Court issued on Tuesday, March 29th, an order requiring all seven parties in the case against the US Government to file supplemental briefs “that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The new ruling establishes that the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

Paul Clement submitted during the oral argument in favor of the Petitioners that the government’s aim was to “hijack” the health plans of religious organisations in order to provide their female employees with contraceptives. When ruling on this case, Chief Justice John Roberts favorably quoted Mr Clement: “The petitioner has used the phrase ‘hijacking’, and it seems to me that that's an accurate description of what the government wants to do. They want to use the mechanism that the Little Sisters and the other petitioners have set up to provide services because they want the coverage to be seamless”.

In brief, the new Supreme Court order suggests, for example, that petitioners could contact their insurer, rather than the government, and inform their insurer that they do not want to provide contraceptive coverage. The insurer would then independently provide cost-free coverage, informing insured employees that the coverage was not paid for by the petitioner and was not provided under the petitioner’s health plan.