May 17, 2016 By Roger Severino and Elizabeth Slattery
The Supreme Court issued its long-awaited ruling on Monday in the consolidated challenge to Obamacare’s requirement that nonprofit employers collaborate in the provision of employee health insurance coverage that includes abortion-inducing drugs and devices.
In a unanimous opinion, the Supreme Court “vacated,” meaning erased, all of the lower court cases and required them to reconsider the claims brought by the Little Sisters of the Poor and others that the regulations promulgated pursuant to Obamacare violate their religious exercise in light of the government’s admission that it could indeed provide contraceptive coverage without the Little Sisters’ collaboration.
This is a victory, not only for the Little Sisters, but for all individuals and organizations who step outside the four walls of a house of worship to serve the poor, heal the sick, or educate the next generation.
Many employers, such as the Little Sisters of the Poor, Priests for Life, and religious colleges and charities, object to including Plan B, Ella, contraception, and sterilization in their health insurance plans—a claim the Supreme Court took seriously.
Following oral arguments earlier this year, the justices asked the parties to file supplemental briefs, addressing how employees would obtain contraceptive coverage through their employer’s insurance companies without any involvement from the employer, including notifying the government, their insurer, or a third-party administrator of their objection.
The Little Sisters of the Poor and other challengers suggested, among other things, that the government could require insurance providers to make separate contraceptive plans available to employees whose employer plans do not include such coverage.
This would require a separate enrollment process along the lines of how some employers have separate dental, vision, or prescription plans, as well as separate “insurance cards, payment sources, and communication streams.”
They maintained that such “truly independent efforts to provide contraceptive coverage to their employees” would allay their religious objections because they would be removed from the process entirely.
According to the Supreme Court, “the government has confirmed” its scheme could be modified in a manner that leaves the Little Sisters of the Poor out of the process, as they requested, while still insuring women employees receive contraceptive coverage.
The Supreme Court left the exact details to be worked out among the parties and instructed the lower courts to give them “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage.’”
Under the challenged regulations, nonprofit employers like the Little Sisters of the Poor must either submit a self-certification form to their insurer or health plan administrator or notify the Department of Health and Human Services of their religious objection to providing contraceptive coverage in writing and provide contact information for their health plan insurer or third-party administrator.
Either way, the actions taken by the employer would authorize the inclusion of coverage of the objectionable drugs and devices in its health plan.
The Little Sisters of the Poor could not in good conscience play such an indispensable part in the machinery that provides abortion-inducing drugs and devices through health plans and infrastructure that they are paying for and providing to their employees.
Failing to provide the objectionable notice meant the Little Sisters of the Poor faced $70 million per year in penalties.
But the Supreme Court now says that “the government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.” This isprecisely what the Little Sisters of the Poor have been asking for as relief.
The ruling means that all the lower court opinions that went against the religious freedom of the Little Sisters of the Poor and the other religious nonprofits are wiped away and their flawed reasoning cannot be used as precedent in the future.
It illustrates that the government could have accommodated the Little Sisters of the Poor all along without affecting contraceptive coverage, but chose not to. And it guarantees that the government cannot force the Little Sisters of the Poor and the other challengers to choose between violating their consciences as the government demands or face crippling fines and penalties.
In the coming months, the lower courts will reconsider these challenges, but it is hard to see how the administration and the lower courts can find a way to get around the Supreme Court’s unanimous order—making the decision a big victory for the Little Sisters of the Poor.
Roger Severino is the director of the DeVos Center for Religion and Civil Society at The Heritage Foundation.
Elizabeth Slattery writes about the rule of law, the proper role of the courts, civil rights and equal protection, and the scope of constitutional provisions such as the Commerce Clause and the Recess Appointments Clause as a legal fellow in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.