Even the Nuns’ Birth Control Lawsuit Is About Corporate Power, Not Religious Freedom

Read more of our coverage on the Little Sisters of the Poor case here.

2013 came to a close with a flurry of activity, and confusion, around the birth control benefit in the Affordable Care Act, with Supreme Court Justice Sonia Sotomayor granting a last-minute request by a group of Catholic nonprofits challenging the exemption process to the health-care law. The nonprofits, led by a group of nuns who operate assisted living facilities in Colorado and Maryland, put forward the familiar refrain of an overzealous Obama administration running roughshod over religious freedom in the name of its health-care reform agenda. But unlike the group of secular, for-profit corporations that are challenging the health-care law’s basic requirement that all qualified employers insure all their employees equally, including by providing full access to preventative care like contraception, or face financial penalties, the Little Sisters and similar religious nonprofits don’t have to comply with the law’s requirement to provide birth control at no additional cost to their employees because they are exempt.

So if the Little Sisters don’t, and likely won’t ever, have to comply with the contraception mandate, then what is all the fuss about? As it turns out, paperwork.

EBSA 700 is the form used by religious nonprofits to self-certify their exempt status, and it is at the heart of the Little Sisters case. According to the nuns, completing the two-page form is tantamount to becoming an instrument of sin. The form requires a key person in the organization applying for the exemption to certify that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered, [that] the organization is organized and operates as a non-profit entity and [that] the organization holds itself out as a religious organization.” What the Little Sisters and other religiously affiliated nonprofit organizations find most objectionable about the form is that it exists at all and that, in order to take advantage of the broad religious exemption to the contraception mandate, any religiously affiliated nonprofit must execute it; this shifts the law’s requirement that employers provide access to equal insurance coverage to a health insurance company that then provides those contraceptive services in lieu of the religiously affiliated nonprofit. Thus, the nuns argue, the head of a religious organization filling out and signing that document is forced to become part of the overall “scheme” to deliver contraceptive services to their employees. The simple act of preparing and signing EBSA 700 is, they contend, a substantial burden on their exercise of faith and a violation of the Religious Freedom Restoration Act (RFRA).

Not surprisingly, the Obama administration disputes the claim that completing EBSA 700 in order to take advantage of the religious exemption affects religious faith in any way, let alone substantially burdens a person’s faith. To begin with, the administration argues, once the form is filed by the religious organization, that ends the group’s involvement in the contraception mandate program. Once that form is filed, the organization has certified its status as exempt, and any obligation to provide contraception coverage is imposed by the ACA, not by the religious organization sponsoring the health plan. Furthermore, because these disputes center around employer-sponsored benefit plans, they fall under the umbrella of the Employee Retirement Income Security Act of 1974 (ERISA). According to the Obama administration, and further explained in this excellent piece by Sarah Posner, ERISA already bars any government regulation of an employee benefit plan run by a church. That prohibition on “church plans” is incorporated into the ACA. This means that, per the Obama administration, the plan administrator for the Little Sisters has no legal duty to provide the services at all, and there is no way to compel it to do otherwise. In other words, even if the Little Sisters loses its legal challenge to the mandate, it still won’t have to provide its employees with contraception coverage, and there’s nothing the administration can do about it.

If a “stroke of the pen” will get the Little Sisters entirely out from under the contraception mandate and all its requirements, as the Obama administration claims—and, even if it loses, the nuns won’t have to make contraception available to their employees anyway—what is going on with this case?

According to the Obama administration:

As this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.

Put another way, this case isn’t about whether the law sufficiently protects religious organizations from being compelled to violate their faith; it’s about whether religious organizations can use federal law to shield themselves from the consequences of discriminatory behavior.

It’s clear the Little Sisters case is being used as a vehicle by conservatives to attack the “substantial burden” requirement under the RFRA, which requires that before a party is protected under the RFRA the party must show that the government action in dispute is a “substantial burden” on their religious rights. As ThinkProgress’ Ian Millhiser explains, any ruling that completing administrative paperwork to obtain a benefit constitutes a “substantial burden” would be a clear win for conservative culture warriors. With the “substantial burden” hurdle removed, complying with practically any law could be characterized as a religious objection and used by employers to avoid complying with a host of government regulations.

But what about the for-profit business and their legal challenges to the contraception mandate to be heard by the Roberts Court this spring? How do they factor into all this mess? The Little Sisters case doesn’t implicate those cases directly since in those cases secular, for-profit businesses are trying to take advantage of the exemption from the law the nuns already enjoy and expand the definition of religious exercise to include corporate, institutional religious rights. But, when these cases are taken together, it’s clear what’s at stake.

The contraception benefit in the Affordable Care Act is at its core an anti-discrimination provision, one that helps end the practice of providing unequal insurance benefits to employees on the basis of their gender. In the case of both Hobby Lobby and Little Sisters of the Poor, many of the employees at these organizations work hourly wages, and the cost of having contraceptives covered at no additional cost can mean an extra $40 to $50 a month. For Hobby Lobby and the other for-profit businesses challenging the law, the profit motive in denying contraception coverage is clear. But in the nuns’ case, it’s more muted, drowned out by hyperbolic hand-wringing by pundits over the Obama administration’s efforts to force nuns onto the pill. Add the fact that the nuns have absolutely nothing to lose in this case, and the crusade becomes even more apparent.

If conservatives get their way in these birth control benefit challenges, then secular, for-profit businesses will have the ability to avoid government regulation by asserting that compliance conflicts with corporate religious rights without having to show that regulation was a “substantial burden” on those rights. That opens the door to employers denying access to health care for other services they object to, whether it be HIV-related treatments or blood transfusions, and leaving employees with no legal avenues to challenge those denials. And with Catholic institutions taking up an ever-growing market share of health care-related businesses, and with a number of employees at those institutions being women who work hourly wages, that’s a significant and discriminatory coverage gap created within a law designed to do just the opposite. Finally, add to the contraception mandate fight conservatives insisting in a right to exclude from employment LGBTQ individuals by opposing the Employment Non-Discrimination Act, and its easy to grasp that the fight over insurance coverage for contraception was never really about birth control as much as it was about creating new legal protections to push back against the tide of progress made not just by passing the Affordable Care Act, but by the decades of civil rights advances that came before it.

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  • Rabbi Dennis S. Ross

    Thanks for this, Jessica! The reality is that these religiously-affiliated health providers are not-for-profit businesses… the are NOT churches, even though they want us to think they are. Plus, they hire people from all backgrounds, including members of my faith and others who believe that access to birth control is a moral good. And then, the insurance belongs to the worker, not the employer, because the worker has earned the insurance, just like salary, pension and the like. Point: An employer has no business imposing unwanted religious restrictions into the private life of a worker.

    • HeilMary1


      • Rabbi Dennis S. Ross

        Thanks so much!

    • http://plumstchili.blogspot.com/ Plum Dumpling

      Thank you, Rabbi. Well said.

  • JSB3

    This makes me absolutely sick!!!! >:(

  • radsenior

    If you have insurance, it’s probably because you pay for it. Overwhelmingly, women either pay for it out of their own pockets on the private insurance market or through their compensation package, which is akin to wages. Any health services rendered through your insurance plan are paid for, in some form, by you. So birth control and other contraception is not “free” under the new mandate, a point Jacobson makes quite clearly. Because if you have insurance, you pay for it, either by virtue of your labor or out of your own pocket, or, depending on the situation, both. And under the ACA, it is now mandated that your insurance plan cover certain benefits without a co-pay. This does not make them “free.” It means that you are paying for that service as part of your premium. You earned it, you paid for it, it is yours. If you pay for it, you deserve to get it.
    Contraception has long been financially out of reach for too many women. The Affordable Care Act is far from perfect, but it does represent the best chance millions of women will have at accessing necessary health care that will improve their lives. As I have previously reported, a recent review of more than 66 studies conducted over three decades reveals that a woman’s ability to control her fertility impacts much more than just if and when she will have a child; contraception plays a significant role in shaping women’s financial, professional and emotional lives, too.
    The Obama administration already granted religious nonprofits an exemption from the law if they object to contraception for religious reasons. All these organizations have to do is fill out a form stating that they want an exemption, and a third-party administrator will provide contraception coverage for them. The organizations do not pay for the contraceptive coverage, the third-party administrator does. Signing a form to receive an exemption from a health care law is very easy. Signing a form is not a violation of religious freedom. It is signing a form.
    The sane person’s answer to this question is, “no,” but the Supreme Court has yet to decide whether or not a for-profit corporation — that incorporated to specifically protect itself from personal liability — is legally entitled to the same kind of religious freedom exercised by individual people. Perhaps, then, the bigger question is: Can corporations have it both ways? Can a private company have all of the freedom from liability that incorporation provides, and a select menu of personal liberties when such liberties are deemed advantageous? The 10th Circuit says yes; the 3rd Circuit argues no. But it’s what the Supreme Court thinks that will really matter. For women, yes, but also for everyone else who doesn’t want to have their employer’s religious views determine how they live their private lives.

  • Andrea McDavid

    I know I’m going to be accused of being facetious and such, and I’m going to be accused of being insensitive to women who are so dependent on men for survival that they cannot exercise their right to say no, but if enough women that can say no, do say no, all this baloney arguing back and forth would be over in a very short time. Women have the power to stop this right now. They just have to go on a sex strike. Not the ones who are too poor to exercise their rights. The ones that can. It’s stopped wars in Liberia and the Phillipines and it can stop this war too. Women just have to be organized about it. Someone has to lead. I really don’t think this will be won in court. Not with 6 out of 9 justices being Catholic now. It’s too late. We can debate the merits later once the power has been shown to still be in the hands of women and the men who respect and support them – just like the ones who fled here to escape this nonsense in Europe in the first place. How ironic this is now the same battle that was fought for hundreds of years before people realized they could stop fighting and flee to the new world. But the struggle followed them here and it’s been smouldering ever since. I think they founders knew this would happen. That’s why so many monuments display it – like the Statue of Liberty. They knew if they just wrote it in books they would be burned but how do you make a colossal statue of a woman with broken shackles at her feet, welcoming rebels, disappear. Bravo.

  • CJ99

    They’re sticking their foot in the door for later legislation to further erode the rights of others to birth control. to say that nuns who as already stated don’t need birth control (allegedly) and already have an exception some how need yet further exceptions?

  • http://plumstchili.blogspot.com/ Plum Dumpling

    What is nonviolent civil/religious disobedience? Gandhi’s definition is the clearest in my opinion:

    I have also called it love-force or soul-force. . . . I discovered in the earliest stages that pursuit of truth did not admit of violence being inflicted on one’s opponent but that he must be weaned from error by patience and compassion. For what appears to be truth to the one may appear to be error to the other. And patience means self-suffering. So the doctrine came to mean vindication of truth, not by infliction of suffering on the opponent, but on oneself.[8]

    Let us examine the definition of violence:

    Violence is defined by the World Health Organization as the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation. This definition associates intentionality with the committing of the act itself, irrespective of the outcome it produces.


    A conscientious objector takes on the burden of the objection. That is the nature of nonviolent conscientious objection, religious or otherwise. Transferring the burden of one’s own conscientious objection onto the Other is not conscientious objection. It is assault. The Roman Catholic Church is engaging in the War on Women. This is not new. And it is getting very old.