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The Chief Justice of the United States seemed to show sympathy with the Little Sisters of the Poor and others in a case challenging an Obamacare provision when he agreed that the government is “hijacking” their health care plans.
Chief Justice John Roberts presided over oral arguments Wednesday in Zubik v. Burwell, where faith-based employers claim that signing a form or letter requesting exemption from the requirement to provide contraceptive coverage for their lay employees actually triggers the coverage and makes them complicit.
Roberts said he finds the faith-based groups’ use of the phrase “hijacking” to be an “accurate description of what the government wants to do” to their health insurance plans.
“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,” he said during an exchange with U.S. Solicitor General Donald B. Verrilli Jr.
In a back and forth with Verrilli on which party would have to do the paperwork — the Little Sisters in signing a letter of objection, or a female employee finding a plan that pays for contraception — the Chief Justice said, “In the one case it’s an administrative burden. … In the other case, it’s a violation of a basic principle of faith.”
According to SCOTUSBlog, at issue in the case is whether the contraceptive-coverage mandate imposed by the Department of Health and Human Services, and the “accommodation” worked out for religious objectors, violate the 1993 Religious Freedom Restoration Act by forcing religious nonprofits to act against sincerely held religious beliefs. RFRA bars the government from imposing a “substantial burden” on the exercise of religious beliefs, the blog explained, but allows such burdens if the policy or program is “the least restrictive means” that the government could use to achieve a “compelling government interest.”
“When a religious nonprofit institution has handed over the management of its employee benefit plan to an outside insurer, that insurer is a third party with whom the government should be free to deal directly, according to the government,” Scotusblog said.
The case was heard a month and a half after the death of Justice Antonin Scalia, a reliable vote for religious freedom issues. With only eight justices on the court, a 4-4 tie would mean that the lower court decisions would be upheld. The law then would be applied differently in various jurisdictions.
Seven federal appeals courts have ruled for the government in challenges to the accommodation, The New York Times explained. The U.S. Court of Appeals for the District of Columbia Circuit, for example, ruled against the challengers, denying that the accommodation imposes a substantial burden.
“All plaintiffs must do to opt out is express what they believe and seek what they want via a letter or two-page form,” wrote Judge Cornelia T. L. Pillard for that court’s unanimous three-judge panel in 2014.
But Bishop David Zubik of Pittsburgh wrote in a column this week, “We couldn’t accept this ‘accommodation.’ The ‘work-around’ would require the faith-based agencies to directly cooperate with the contraceptive mandate by filling out forms and providing names. We would be required to facilitate and cooperate with the provision of drugs, devices and procedures that we have long deemed immoral.”
So argued attorney Paul Clement in Wednesday’s high court hearing: “The government demands more than an objection, the fact that it enforces it with massive penalties, and the reality that if that happens then they are going to hijack our health plans and provide the coverage against our will.”
Clement noted that in its brief, “the government admits … that they need more just than to know that we raise our hand and opt out. They also need additional information about our insurer or our” third-party administrator.
Justice Ruth Bader Ginsburg tried to clarify that the government only needs to know who the insurer is so they can establish an independent contract with that insurer or third-party administrator.
“The insurer or the third-party administrator is then not dealing with the employer at all,” she said. “It has an independent obligation that is imposed by the government on it, and not the company.”
But Clement responded that the government “treats that form as an authorization.”
Ginsburg disagreed. “You could say, ‘I fill out the form. I do not authorize. I do not permit,’” she argued.
Clement retorted, “If we don’t provide the form, then the coverage doesn’t flow.”
Both Clement and Noel Francisco, who also argued for the petitioners, suggested that the government might get around the impasse by using an “uber-insurance policy” to provide contraceptive coverage “to all women in this country.”
Verrilli admitted that the government does not question petitioners’ belief that they are complicit in a moral wrong. The solicitor general said the government is “trying to make an alternative arrangement that comes as close as we can to ensuring that the employees who may not share the petitioners’ religious beliefs get what the law entitles them to while at the same time ensuring that the employer does not have any legal obligation to pay for the coverage, to provide the coverage in any way.”
He described a scenario under the government’s plan, where a new employee of a religious organization would receive an information package about the main insurance coverage, but it would not mention contraceptive coverage. “There’s got to be a separate communication from the insurance company to the employee telling the employee, ‘You’re getting this separately from us.’” He said that the insurance company or third-party administrator must use separate, segregated funds.
Verrilli disputed the claim that the document the objectors are being offered to sign is an authorizing document. He called it an “exempting document.” A separate document, which the government sends to a third party administrator, “has a legal effect that creates the obligation on the part of the third party administrator to provide the coverage,” he said. He argued that the government makes an arrangement with the insurance company “that operates in parallel” to the employees’ health plan. “It isn’t through that plan” that contraception is covered, he said.
The solicitor general also said he “didn’t think” the Little Sisters would be subject to fines for failing to comply. He did not elaborate.
The justices are expected to rule by the end of June.