Which of the following seems out of place: Visa, Chevron, ExxonMobil, Pepsi, the Little Sisters of the Poor. If you answered the Little Sisters of the Poor, you answered correctly! If you did so because the first four options are major corporations and the last choice is an order of nuns who care for destitute and dying elderly people, you were only partially correct. The Little Sisters are also the correct out-of-place selection because they are the only option not exempted from the Affordable Care Act’s contraception mandate.
For years now, the Little Sisters have been reluctantly fighting against a regulation in the health-care overhaul that allows the government to use their health-care plans to provide employees with goods and services they object to on religious grounds. As one legal scholar put it, what the government proposes doing is “hijacking” their health-care plan to provide women with things like IUDs. That person may be familiar to some; he is Justice Anthony Kennedy.
In a highly unusual move, the Supreme Court came back to the government and the Little Sisters after March’s oral arguments and asked for a second round of briefs, the final versions of which were due Wednesday. Their question was pretty basic: Is there a way for the government to achieve its goal of providing free contraception to women without roping in nuns and other groups like Priests for Life?
The plaintiffs’ response was plain and simple: yes. As their lawyers at the Becket Fund for Religious Liberty pointed out, they have been making this argument and outlining a number of ways to do so for years. Insurance companies could, for example, offer completely separate coverage just for contraception, something that already has plenty of precedent in the insurance industry. When my family signs up for insurance each year, we select a general plan, and then sign up for a completely separate vision and dental plan. It’s as hard as checking a box on a screen once a year. Because I’m Catholic, I don’t use contraception, but if I wanted it and separate plans were offered that were structured the same as those for dental and vision, it would be a straightforward and easy way to get coverage for it. If the government is really going to argue that’s too hard for someone like me to handle, then I’m sorry, but I’m going to have to say that feels awfully paternalistic.
For those insured by a company unwilling to offer separate plans, the government could provide and subsidize a plan through the insurance exchanges. Wasn’t a major purpose of the exchanges to liberate people from their employers when it came to health insurance? As the plaintiffs’ brief make clear, this isn’t a necessary fight.
And, oops, the government’s brief seemingly accidentally makes the same point, when it acknowledges that if forced to do so by the court, it can find other ways to get these drugs into women’s hands at no cost to them without forcing nuns to turn over their health-care plans. As former 10th Circuit Court Judge Michael McConnell put it for the Washington Post, “The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.”
But back to our friends at the oil and gas, soda, and credit card companies: The government hasn’t even done a great job of convincing people that it truly is interested in its own purported cause. It exempted so many major corporations for financial reasons that one in three Americans’ health-care plans don’t cover the very things the government wants to force the Little Sisters to cover.
Something about that feels really unjust, which may be why a recent Marist poll found that a majority of Americans -- by a 20-point spread, including a majority of women -- think the government’s handling of the Little Sisters is “unfair.”
With final briefs now filed, the ball is back in the Supreme Court’s court, and a decision may be imminent. But it’s still not too late for the government to drop its threat of $70 million in noncompliance fines for the Little Sisters and opt instead for one of the many sensible alternatives floating out there -- and finally just Let Them Serve.
