Several justices on the U.S. Supreme Court today expressed sympathy for religious employers that feel as if the current version of the federal birth control mandate “hijacks” their health plans.
But the justices also talked about the difficulty of “drawing the line” for eligibility for religious exemptions from federal mandates. Justice Elena Kagan said making the line too difficult to draw in connection with birth control mandate cases might hurt any efforts by Congress to give any businesses exemptions for any reason.
The court was hearing oral arguments on a group of several birth control mandate cases bundled under the case name Zubik et al. v. Burwell et al. (Case Number 14-1418.)
The Patient Protection of Affordable Care Act of 2010 (PPACA) required the U.S. Health and Human Services (HHS) secretary to work with the Institute of Medicine, a federal advisory panel, and the Health Resources and Services Administration (HRSA) to develop a package of preventive services that all non-grandfathered major medical plans must cover without imposing deductibles or other cost-sharing requirements on the enrollees. Former HHS Secretary Kathleen Sebelius accepted an HRSA recommendation that the package should include coverage for contraceptive products and services.
HHS has developed a system for exempting houses of worship and similar religious bodies. The department has also developed a system that other types of religious employers, such as universities or hospitals run by religious organizations, can use to opt out of the mandate. Under the HHS opt-out system, an affected employer must send an opt-out notice to HHS. HHS will then provide arrangements for birth control benefits for the affected employees. Affected religious employers that refuse to send the opt-out notices could be subjected to fines.
The employers that brought the cases discussed today, including the Little Sisters of the Poor, said the active opt-out requirement violates their freedom of conscience, “hijacks” their health plans or benefit plan administration arrangements, and violates the federal Religious Freedom Restoration Act of 1993 (RFRA).
The Obama administration and many interest groups argue that the only effective way to make sure that consumers can get access to vital, health-improving birth control benefits is by building the benefits into their major medical coverage.
Kagan and Justice Stephen Breyer both talked about the difficulty of extending religious exemptions to entities other than houses of worship. Kagan said some religious organizations have decided not to support the petitioners in the Zubik case, in part because of fear that success could weaken other types of religious exemptions, or even entirely different types of federal mandate exemptions, such as exemptions in federal benefits mandate laws for very small employers, according to a transcript of the oral arguments provided by the Supreme Court.
Chief Justice John Roberts was the first one to note that the petitioners had described the effect of the birth control mandate as a “hijacking.”
“It seems to me that’s an accurate description of what the government wants to do,” Roberts said. “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.”
Some religious employers may believe that complicity in providing birth control benefits is sinful, even if the employers themselves do not provide the benefits, Roberts said.
Justice Anthony Kennedy summarized the position of the Obama administration on the mandate opt-out system as, “‘Don’t worry, religions, you’re not complicit.’”
Justice Samuel Alito talked about the possibility that HHS could find a better way to help all consumers get birth control benefits while eliminating the need for religious employers to send in opt-out notices.
HHS could fill in any birth control benefits gaps created by religious employers by using its PPACA discretionary authority to let insurers offer birth-control-only policies through the PPACA exchange system, and by paying insurers to do so, Alito said.
“What type of burden does that impose?” Alito asked about having women get birth control benefits from the hypothetical birth-control-only exchange plan. ”Is it because these exchanges are so unworkable, even with the help of a navigator, that a woman who wants to get free contraceptive coverage simply has to sign up for that on one of the exchanges? … So she’ll have two insurance cards instead of one. She’ll have one from the employer, and she’ll have one from this plan.”
Kennedy said the administration seems to be describing offering birth control coverage through an employer plan as easy.
“If it’s so easy to provide, if it’s so free, why can’t they [employees] just get it through another plan?”
Donald Verrilli Jr., who represented the Obama administration, said making consumers sign up for a second plan to get birth control benefits would create the kind of obstacle that the PPACA preventive services provision is meant to eliminate.
“The whole idea here is to ensure that these employees get the health care, get this covered, get this care from their regular doctor as part of their regular health care without these added obstacles,” Verrilli said.
The justices also referred several times to how religious employers might relate to their health insurers. The companies the justices mentioned were Aetna and Blue Cross.
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