Supreme Court Calls Into Question Nonprofit Accommodation to Birth Control Benefit


Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

We saw this coming, right? Late Thursday, while most of the country was busy prepping for the Fourth of July holiday, the Supreme Court granted Wheaton College’s request for an injunction from the birth control benefit, ruling that the college is entitled to an accommodation from the rule but that it doesn’t need to fill out the required paperwork because, as Wheaton argued, even that is too burdensome on its religious rights.

The decision came just days after conservatives on the Court pointed to the accommodation for religiously affiliated nonprofits as a solution to the newly created burden on religious rights of closely held for-profit companies. If it feels like a bait-and-switch, it should. Because it is.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sonia Sotomayor wrote for the dissent, joined by all three female justices. “Not so today.”

Sotomayor continued:

After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. This action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Like the Court did in the Little Sisters of the Poor case, it crafted an alternative for Wheaton College to filling out this form. The form, which is part of the administrative architecture of the Affordable Care Act (ACA), identifies organizations as religious objectors. That triggers a third-party administrator to step in and take over providing contraceptive coverage for those employees and students who want it.

This may not sound like much, but when an entire industry depends on uniformity of forms the way the health-care industry does, the act of re-writing a form is a pretty significant act of judicial activism. “The Court’s approach imposes an unwarranted and unprecedented burden on the Government’s ability to administer an important regulatory scheme,” Sotomayor writes. And that’s just the beginning.

As Justice Sotomayor points out, the accommodation currently in place for organizations like Wheaton College—the one the conservatives on the Roberts Court held up just days earlier in Hobby Lobby as an example of how the government can get it right in balancing religious objections and health insurance coverage for contraception—is the least restrictive path the government could take in administrating the law. Objectors fill out a form identifying their objection, and the government—rightly, in the dissent’s view—takes them at their word. There are no hearings to determine which institutions are actually religious or which beliefs are sincerely held. The government does not require objectors to show anything in the form of justifying the basis of their objection. All they have to do is fill out a form.

But in the cases of Wheaton College and Little Sisters of the Poor, the Roberts Court has crafted a work-around to the work-around, which is effectively a letter sent from the organization to the Department of Health and Human Services identifying the group as an objector and ordering the administration to recognize it for purposes of triggering the accommodation.

Sounds like no big deal, right? But in the world of administration of health-care benefits, this is a disaster because it creates a variation in the forms. “If the Government cannot require organizations to attest to their views by way of a simple self-certification form and notify their third-party administrators of their claimed exemption, how can it ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?” Justice Sotomayor rightly asks.

But knee-capping the government to keep it from doing its job running the ACA is exactly what conservatives on the Roberts Court intend to do. They announced as much two years ago in National Federation of Independent Business (NFIB) v. Sebelius, when the Court narrowly upheld the individual mandate of the ACA while simultaneously blocking the law’s incentive for states to expand Medicaid. In the decision, Justice John Roberts, writing for the majority, said:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

This statement, announcing both the constitutionality of the law and the conservative justices’ political opposition to it, laid the groundwork for what would become the right’s next front in the health-care wars: the courts. And with that decision, the conservative majority on the Roberts Court empowered Republicans to go back and try to achieve through litigation what they had been unable to do through legislation—roll back, if not repeal, the ACA. Fast forward hundreds of lawsuits later, plus the Hobby Lobby decision, and the Court’s order in Wheaton College almost seems inevitable.

That feeling of inevitability is the crisis in confidence Justice Sotomayor warns of in her dissent. And it couldn’t come at a worse time. In addition to the fight over the birth control benefit, the federal courts are considering a host of other challenges to the power of the federal government to administer the health-care law. Halbig v. Burwell, pending in the D.C. Circuit Court of Appeals, argues that the federal health-care exchanges are illegal because Congress only authorized states—and not the federal government—to set up and run them. The case was initially written off by many legal observers as an exercise in politics and formalism, but after a conservative federal court was sympathetic to the claims, it now seems like a more legitimate threat to the law. Should those challenging the power of the government to run the exchanges be successful, individuals who live in states where conservative governors and state legislators refused to set up state-run exchanges and expand Medicaid—political decisions made possible by the Roberts Court—would no longer qualify for subsidies to help them purchase insurance under the ACA. A decision in Halbig v. Burwell is expected any day now.

Thursday’s decision in Wheaton College shows the Roberts Court and its radical incrementalism first displayed in NFIB v. Sebelius in full, partisan effect. It’s important to note that the merits of Wheaton College’s claims are still being litigated in the lower courts, meaning that the Supreme Court took an extraordinary step in granting the injunction when it did. This was a case it didn’t need to get involved in, but it did so anyway. Compare that to earlier in the year, when the Court refused to intervene in the challenge to Texas’ admitting privileges requirement, despite the fact that as a result hundreds of miles of the state would become a reproductive health-care desert.

Since the Court first upheld the individual mandate and effectively blocked Medicaid expansion under the ACA, it has granted for-profit, closely held corporations an opt-out of at least one of the law’s coverage requirements under a theory that has already proven to be more expansive than the conservative majority first promised. There’s also an open legal question as to the ability of the federal government to administer exchanges in states that have refused to do so on their own.

And that’s not even all the challenges to the law out there. The U.S. Court of Appeals for the Fifth Circuit is considering a challenge to the employer mandate, while another federal appeals court is considering a challenge to the constitutionality of the board that sets Medicare reimbursement rates. No one case alone will bring down health-care reform, but if the Court’s action in Wheaton College is any indication, taken together they just might.

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  • fiona64

    Anyone who still believes there is no right-wing war on women is not paying close attention …

    • Peter Fodera

      Anyone who thinks that women are not the primary combat guerrillas in the War On Women have not meditated upon the FACT that Prochoice women kill over 600,000 gestating females — the future women of America — annually; over 28,000,000 since 1973.

      • kitler

        So?

      • kitler

        Yet you would deny those unborn women their bodily autonomy once born. That is the real war on women sweetie.

        • Peter Fodera

          Red Herring. Straw Woman Argument. Never said that and never will. You lose points! Got straight to jail, do not pass Go and do NOT collect $200.

          • kitler

            You are anti-choice, therefore, you would deny these ‘unborn women’ the right to bodily autonomy once born, and treat them as mere gestational slaves.

          • Peter Fodera

            Wrong. I am Prolife and I protect every homo sapien’s right to life, liberty and the pursuit (not the handout provided at someone else’s expense) of happiness. Pursue it on your own budget.

          • goatini

            You are only pro-fetus and pro-patriarchy. Women to you are just utilities to be exploited – or, if disobedient and non-submissive, to be punished.

          • JamieHaman

            Nope, that isn’t pro life, that’s forced birth. You aren’t going to get the difference until you get pregnant. Good luck with that.

          • lady_black

            You couldn’t protect a warm cup of piss.

          • goatini

            Read his comments. He’s nuts.

          • goatini

            We know that you’d like very much to send all non-submissive, non-obedient females “straight to jail”. It’s all about control for you and your kind.

          • Jennifer Starr

            Actually you’ve said it quite a few times. It’s clear that you view women as the equivalent of breeding stock. You’re not ‘prolife’, you’re just an anti-choice nutjob.

          • fiona64

            Actually, you’ve said it many times, with your assertions that women must gestate all pregnancies, Willy.

      • fiona64

        I would like to thank you for being the latest in a long line of anti-choice males who demonstrate how easy it is to be you. After all, you just flap your big, dumb mouth about how much medical risk a woman you’ve never even met should have to assume by gestating a pregnancy (it’s not what you’d call a state of wellness), knowing full well that you will never have to assume those risks yourselves. And then you flap about how women shouldn’t have access to the most effective forms of contraception … crowing about the Hobby Lobby decision, knowing that (once again) you will be blissfully unaffected since the ruling was specifically tailored to only address medications used by women.

        That’s awfully convenient for you and your misogynistic ilk, isn’t it?

        • JamieHaman

          Here’s what I want to see: the look non the faces of folks when their non-contraceptive covering insurance costs RISE due to the very high costs of CHILDBIRTH and attendant hospital care.

        • Peter Fodera

          Women have successfully gestated over 10,000,000,000 men and women homo sapiens. God made it so and so women have successfully exercised their Reproductive Rights over 10 billion times. How hard can it be if less-cranky and complaining women have done so successfully this many billion times?

          • kitler

            And 1 billion women have died from pregnancy since h.sapiens has been around.

          • Peter Fodera

            A lot more men than that have died in battle protecting women’s Reproductive Rights to reproduce human offspring.

          • kitler

            Actually, women have been treated as property throughout most of history and forced to give birth.

          • Peter Fodera

            All but a few #Prochoice women the last couple years love being women and mothering their children till adulthood. Only cranky and #misandrist & #misogynist women complain about the joys of motherhood. Women on average have more today than women at any other time in history and yet they complain more than ever.

            Ever wonder why? We do!

          • goatini

            Women are NOT livestock to be exploited.

            Thousands of years of patriarchal misogynist oppression of women, perpetuated and perpetrated by the three monotheistic desert cults, are over. Women now have personal agency and autonomy to control their own destinies. Incessant breeding as property of one’s “Church”-approved male owner is no longer women’s sole acceptable option in life.

            You’re just going to have to get used to it, because we’re not going back.

          • fiona64

            I smell an MRAsshole!

            My wanted pregnancy almost killed me 28 years ago. I will NOT go through that again. Should my tubal ligation fail (they can, and do), there will be an abortion so fast that your ignorant, ugly head will spin right off.

            Thanks for proving once again how easy it is to be an anti-choice male, though, demanding that women assume medical risks that will never affect you!

          • Shan

            #what’s #with #the #hashtag #abuse?

          • goatini

            Mandatory gestation and birth is not a “right”.

          • Peter Fodera

            Gestation is a gift from God & mothering is God’s design to propagate the species He created. Most moral women delight in this privilege and thank God for it.

          • Shan

            It’s not a gift if it’s legally mandated.

          • kitler

            If its such a gift then why does it kill 300k women per year worldwide?

          • Jennifer Starr

            You’re allowed to delight in the ‘gift’ or ‘privilege’of any pregnancies that you gestate inside your body. As to other women’s pregnancies, you get to butt the hell out.

          • fiona64

            Unwanted gifts can be returned, sweetie.

          • Unicorn Farm

            Get your sick, bigoted “Christian” beliefs away from me and my body. You’re welcome to believe such idiocy, but get the f* away from me with that nonsense.

          • goatini

            Livestock is capable of gestation, nothing about it is a “privilege” or related to “God”. It’s biology, nothing more, nothing less. Women of the species Homo Sapiens are not livestock, and thanks to modern medicine, science, and civil law, can now start or grow their families when, where, why, how, and with whom THEY themselves decide.

            And I find males who consider females to be livestock to be highly immoral.

          • lady_black

            I don’t want this “gift.” Direct me to the return counter.

          • JamieHaman

            What crap. No men have died in battle protecting women’s reproductive rights. They die in battle to save the living breathing lives of other people.

            There has not been a single war where men have died to protect reproductive rights. Total lie. STFU.

          • fiona64

            Thank you … that’s why i asked him for a citation. Alternately, I will accept his admission that he’s a big fat liar.

          • fiona64

            A lot more men than that have died in battle protecting women’s Reproductive Rights

            Citation needed.

          • P. McCoy

            Men died in battles to gain, maintain or expand their spheres of money, power and influence for worldly and political ( masked as patriarchal religious) GAIN for their own sex and NO OTHER!

          • fiona64

            Yep. Little Willy has had more than 8 hours to answer my simple question … and he’s gone silent. Why is that, do you suppose? ;-)

          • Shan

            Forgot the password to his new account.

          • lady_black

            I have the right NOT to reproduce human offspring. I have more respect for those who fight for that right.

          • JamieHaman

            Look at the numbers of women and children around the world who live in poverty. Is more of that poverty what you want?

          • lady_black

            If it’s so easy, YOU do it.

          • Shan

            *snort*

        • Peter Fodera

          Misogyny IS as misogyny does and no one does it better than the women who annually kill in utero over 600,000 gestating baby girls. Men can NOT come close; nor #Prolife women.

          • goatini

            No babies involved in a safe, legal pregnancy termination.

            Mandatory gestation and birth is not a “right”.

            And millennia of institutionalized misogyny, the primary progenitor of which is patriarchal mythology and superstition of the three monotheistic desert cults, have come to an end. Women how have agency and autonomy other than forced oppressed as chattel property breeding livestock under “Church”-approved male ownership.

          • fiona64

            Yep, it’s little Willy Josephs under a new name since he got hit by the ban-hammer. I’ll just wait for the next one, Willy, while you continue to post your MRAsshole rants.

          • Shan

            “Misogyny IS as misogyny does and no one does it better than the women who annually kill in utero over 600,000 gestating baby girls.”

            Women generally have the number children they want to have throughout their reproductive lifetimes. One third of women in the US has had an abortion by the age of 45. Two thirds of women who have an abortion already have at least one child. And every woman I know who has had an abortion has gone on to have children she wouldn’t otherwise have had. Girl children, even.

          • chicano2nd

            So you like to show your stupidity? You wear it on your sleeve! Why?

          • lady_black

            If men could get pregnant, abortion would be available at Home Depot, and liquor stores.

      • lady_black

        So what?

      • goatini

        You mean, 28,000,000 women got their lives back, instead of suffering with an unwanted pregnancy in gestational slavery.

        Fixed it for you.

        Reproductive justice freedom fighters will continue to protect our inalienable civil, human and Constitutional rights to privacy and bodily autonomy from anti-American attacks by theocratic enemies.

      • DannyJane

        You can make comment when YOU get pregnant and find out it will risk your life or condemn your living children to poverty. Until then do us the courtesy of being someplace that is not here.

    • BelligerentBruncher

      Why don’t you set up a company that offers supplement birth control coverage to all the women (and men) who aren’t currently covered? I mean, if you cared about those poor women and all.

      • fiona64

        Oh, look: 5×5 has outed himself again.

        • Jennifer Starr

          The most boring and predictable troll around–just keeps reposting the same rubbish as if he imagines that his words actually have some value–they don’t.

    • xuinkrbin

      How would explain so many Women holding the same views as the Men supposedly engaging in the “right-wing war on women”? Are You really saying there are so many Self-Haters? I would find the probability of such a scenario to be so small as to readily dismiss that hypothesis as incorrect.

      • kitler

        Women can be misogynist too. Just look at all of the Muslim women who engage in honor killings of their own daughters

      • fiona64

        That’s because you’re unfamiliar with things like self-loathing or Stockholm syndrome, evidently …

      • Jennifer Jonsson

        Put female people into a culture, tell them over and over again that their lives are not important and their opinions not valid, and some of them will eventually believe it.

  • Kathryn Ranieri

    This is another undeclared war not for special gains for Halliburton and other cronies of Dubya and not for the corporate thugs who are in bed with the Supremes. This is a war on women, for certain. But it’s also a war on anyone who is not white, Christian, straight, Republican. We really need to work together to stop this nonsense!!!

  • Peter Fodera

    We do not demand that religious organizations that have been protected by the Constitution, statute and SCOTUS rulings to practice their religion 24/7/365 in any public venue they choose to one second say they won’t engage in any behavior that abrogates the tenets of their religion and then sign a paper in the next giving a third party permission to do so for people that labor in exchange for remuneration and company-controlled and provided benefits paid for by the religious objector.

    WHERE does it state that Hobby Lobby will have to fill out a form asking for permission not to supply 4 different types of abortifacients and giving a 3rd party permission to do so for their employees? Please point that out in the text of the Majority Hobby Lobby SCOTUS decision.

    Wheaton, a thoroughly evangelical Christian school, objects to doing the same; its trustees, faculty, staff and students sign a Statement of Faith that identifies them all as consonant with and obedient to Wheaton’s religious beliefs, prescriptions and proscriptions. Wheaton need not deny their faculty, staff and students what the latter have already agreed to not receive from Wheaton and in the next instance sign a paper giving a 3rd party permission to supply what has been agreed by all parties won’t be.

    If you don’t understand the Constitution, statutory law, and SCOTUS rulings, the nature of religion, Christianity in general and evangelical Christianity in particular please save face and write about something else.

    • anja

      The “Religion” involved here has no consistent, reliable, moral, or honest nature and is only understandable to the bigots it benefits. Why is their version of Christianity better than all the others versions and why is it it better than all other religions and more importantly, why is it better than no religion?

      • Peter Fodera

        It is only incomprehensible to the irreligious, God-haters, religious-ignorants and self-idolaters. If the shoe fits . . .

        The rest of U.S. understand it perfectly.

        • fiona64

          Yep, it’s little Willy again.

        • kitler

          Do you hate non Christians too?

        • Jennifer Starr

          No, that wasn’t nearly enough hysteria. Try harder next time.

          • fiona64

            I know, right? He needs more exclamation points, as well as more misogynistic dog-whistle terms that he learned at one of his MRA sites.

        • goatini

          America is not a theocracy.

        • anja

          So you are saying that having the christian religion make you better than everyone else and gives you the right to oppress, discriminate, condemn, forcibly convert, and induce suffering to all people of other religions. That doesn’t seem right or fair or even very christian. It certainly violates the the basic principles that America was founded on as well as religious freedom and basic morality.
          You don’t have to be religious-ignorant to be irreligious, god-hating, or a self-idolater. Those terms are independent. But you do have to be a cruel, bigoted, disgusting excuse for a human to use religion to justify your hatred of others.

        • anja

          It’s obvious you don’t understand!

  • Peter Fodera

    After all the recent decisions against Obama and for the Constitution, how many of you wish Chief Justice Roberts did NOT change his mind at the last minute to vote for Obamacare but had just struck it down in NFIB v “Glitchy” Sebelius? I sure do. We could have avoided all these hyper-feminist #Prochoice disappointments (Prolife women are ecstatic!) and started all over and got healthcare right and proper for the entire nation.

  • anja

    The religious favoritism by the supreme court and the GOP is truly disgusting.

  • fiona64

    And Pres. Obama has punked every single one of the misogynistic, anti-woman jerks who thought that Hobby Lobby was a great decision: http://www.slate.com/blogs/xx_factor/2012/02/10/obama_riled_up_republicans_on_contraception_and_then_delivers_a_knock_out_punch_.html

    • JamieHaman

      Thanks for posting this. I appreciate it.

      • fiona64

        Unfortunately, I just noticed it’s a 2012 article … but the same strategy still applies.

  • JamieHaman

    I dream of the day my daughters and I will have the same rights as a corporation. smh

    • Peter Fodera

      Just get religion, start exercising it, and you will!

      • JamieHaman

        lol, already HAVE religion. DON’T have the same RIGHTS as a CORPORATION!

        • Peter Fodera

          Corporations can exercise religion and so can you — so long as you don’t kill babies in utero while doing so!

          • goatini

            Babies have all been born.
            Safe, legal pregnancy termination harms NO babies whatsoever, ever.
            Safe, legal pregnancy termination IS LEGAL.

          • JamieHaman

            My religion Yes, my health care NO. Clearly I don’t get to decide, clearly a corporation does. As long as they do, and I don’t, they have more rights than myself, my sisters, my daughters. Get it now?

          • fiona64

            Corporations can exercise religion

            You let us know when a Hobby Lobby building is sitting in a church pew, okay, Will Josephs?

          • lady_black

            I have the right not to exercise religion. And to not gestate.

      • P. McCoy

        I have religion too, it advocates amending the 1st Amendment so we are protected against Christo Fascistic Taliban domestic terrorists whose goals are to overthrow the US government and establish a theocracy.

  • Peter Fodera

    For Wheaton, a Supremely Gratifying Decision

    The Supreme Court’s term may be over, but the debate certainly isn’t. Four days after hanging up their robes for the summer, the justices made another splash on the HHS mandate — this time, taking a bite out of the President’s outrageous “compromise.” Last year, when the backlash over the mandate was too much for the White House to handle, the President announced an “accommodation,” for religious groups — which, it turns out, only accommodates his agenda of forcing people to cover pills and procedures they morally object to.

    Essentially, the Obama administration suggested that religious groups still pay for the “health care” they oppose, but use a third-party to do so. Unfortunately, faith-based groups pointed out, the cost-shifting doesn’t change anything. There’s a slight adjustment in how the accounting is done for the drugs or services that violate people’s consciences — but, in the end, the President’s “compromise” is just a bookkeeping gimmick that hides the coverage in the plan.

    It’s even more ridiculous when you consider that self-insured nonprofits are their own insurance companies — so even a flimsy buffer like the President’s wouldn’t protect them. As FRC has pointed out, it’s a political fig leaf that does nothing to alter the President’s underlying discrimination against religious organizations.

    But unfortunately, that fig leaf is what’s holding the feet of faith-based charities, colleges, and hospitals to the mandate’s fire. More than four dozen lawsuits are winding their way through the courts — including a challenge from Illinois’s Wheaton College, a Christian school near Chicago. On Thursday, the justices took the sting out of the mandate for Wheaton, at least temporarily, until the case makes its way to the Court. By a 6-3 vote, the majority issued an emergency injunction in favor of the college — a decision that put the second phase of the mandate fight in the spotlight.

    While the injunction doesn’t mean that the justices would necessarily strike the mandate down for religious nonprofits, it does suggest that they see through the administration’s money-shuffling sham. “Anything that forces unwilling religious believers to be part of the system is not going to pass the test,” said Mark Rienzi of theBecket Fund for Religious Liberty.

    In the meantime, faith-based groups have some company in the mandate’s disgruntled camp. This non-existent firewall isn’t just offensive — it’s expensive. As one expert explains, “There was no budget money set aside for this. There’s certainly no money that is part of the Affordable Care Act appropriations. I can see why the third-party administrators would be concerned.”

    The Washington Post puts it this way: “It’s a complex solution that hasn’t worked in the real world, said the third-party administrators… providing the birth-control benefit, because the government hasn’t figured out how to pay them back.” In other words, the President’s “solution” is putting these go-betweens on the hook for pills and procedures that even the government isn’t prepared to cover. Since the accounting gimmick was introduced, none of U.S.’s 300 TPAs (third-parties) has “found an insurer willing to join with it.” And no wonder! The costs, Alex Wayne points out, could run “in the millions of dollars.”

    Meanwhile, women aren’t exactly suffering from a lack of contraception and abortifacients. A new report just released found that the rate of insured women who got free birth control soared to 56% last year from just 14% in 2012. So if there is a “war on women,” it’s on women with religious beliefs — who seem to be the only ones hurting under the law.

  • BelligerentBruncher

    So the women at Wheaton will be allowed to purchase and use their own birth control if they so desire….just like the men.

    OK, next.

    • Shan

      No, actually. The women at Wheaton and anywhere else (and any of the men who have wives or dependents on their health insurance policies) always have been and always will be paying for their own birth control through their insurance premiums.

      • BelligerentBruncher

        This may or may not come as a huge surprise to you, but your insurance premiums only pay for the things that are covered on your plan.

        My insurance premiums don’t pay for dental, well, because it’s not included.

        Just like certain forms of birth control (including condoms) aren’t included on some insurance plans. Your outrage is transparent.

        • Shan

          “This may or may not come as a huge surprise to you, but your insurance premiums only pay for the things that are covered on your plan.”

          Wheaton’s health insurance covers birth control.

          • BelligerentBruncher

            Not all birth control.

    • fiona64

      Shut up, 5×5.

    • P. McCoy

      You’re cavalier, but taking away life saving choices for women ( as contraception can be) invites blowback-maybe your kids will need a blood transfusion and my religion will refuse it to them.because they’re the kids of right wing fanatics. Payback!

      • BelligerentBruncher

        ok, then I won’t work for you.

        Problem solved.

        • P. McCoy

          It won’t be just me just like it isn’t just Hobby Lobby or its allies. So save up millions for your I ‘ll pay for it myself health insurance.

          • BelligerentBruncher

            Yeah, I’ve been doing that with dental and vision for years. Just like millions of other adults who are able to pull their heads out of their collective ass.

            Don’t worry. You’ll figure it out someday.

          • fiona64

            That’s right, because teenaged boys who live in their mommy’s basements totally pay for their own health insurance.

      • fiona64

        He doesn’t care; he’s just an angry little DudeBro troll.

  • xuinkrbin

    You’re wrong on multiple points and You might want to consider this a good thing; hear Me out.

    You say, “[Wheaton College] doesn’t need to fill out the required paperwork because, as Wheaton argued, even that is too burdensome on its religious rights.” However, You mischaracterize what is meant by “substantial burden upon religion. As the Supreme Court noted in Thomas v. Review Board of Indiana Employment Security Division, a substantial burden occurs when the government “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs”. The court also held even when “the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” In this case, Wheaton’s beliefs tell Them to not fill out the form; yet, the fines/taxes imposed for not doing so amount to $100 per Employee per day or almost $40,000 per Employee per year; it is the fines/taxes imposed which are the substantial burden and not the form.

    You say, “The decision came just days after conservatives on the Court pointed to the accommodation for religiously affiliated nonprofits as a solution to the newly created burden on religious rights of closely held for-profit companies. If it feels like a bait-and-switch, it should. Because it is” but it’s not because , just because option A is more restrictive than option B, such does not automatically preclude the possibility of the existence of even-less restrictive options C, D, and E.

    The reliance upon the quotes by Justice Sotomayor is simply a bad idea if attempting to persuade People because Her Honor’s argument is invalid. Her Honor able to point to a single portion of the Hobby Lobby decision with which this order contradicts including, as noted above, the possible existence of even less restrictive means than the administration is offering in its accommodation. Nor is Her Honor able to point to any provision of law which permits the court to rule otherwise; the Religious Freedom Restoration Act (RFRA) constrains the actions the government may use in implementing the ACA and necessitates the analysis of objections on a case-by-case Objector-by-Objector basis. Therefore, in Hobby Lobby, the court was only permitted to consider whether or not a less restrictive method exists of advancing the government’s interest which might satisfy the Objectors in that case; whether or not that alternative satisfied All Objectors was not a question the court was permitted to answer. However, if You were familiar enough with legal issues to speak competently on the subject, You would know this, suggesting You are not familiar enough to discuss this issue competently or are lying.

    You say, “This may not sound like much, but when an entire industry depends on uniformity of forms the way the health-care industry does …” but ignore the fact the form in question is not an industry created form by a government regulatory form and, despite Justice Sotomayor’s assertions to the contrary, the application of regulations must comply with statutes the legislature has enacted, which means the administration must craft an approach which complies with not just the Affordable Care Act (ACA) but also RFRA.

    And, no, the administration’s accommodation is not the least restrictive means of advancing the government’s interest; the administration could say, “If, as an Employee, Your insurance plan does not provide such coverage, You (the Employee) can fill out this form and We will make the arrangements for You to have coverage.” This approach completely leaves the Employer out of the equation, is even less restrictive than the requirement the Employer fill out form 700, and provides Everyone the coverage to the exact same extent the administration initially sought, putting to rest Justice Sotomayor’s concerns about “perform[ing] the administrative tasks necessary to make the accommodation work”.

    Regarding the Chief Justice’s statement, “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions”, no reasonable Person can look at that say “the conservative justices” were “announcing … political opposition to [the ACA]”.

    The “crisis of confidence” argument might be compelling if it were not wholly inaccurate. However, as I demonstrated above, the argument is. However, with respect to additional challenges, this is why We have courts: to sort out disputes about what the law actually say so, if needed, We can go back and fix those problems. Just because Someone might show We have additional work to do doesn’t mean We should feel a “crisis” is at hand. We supporting the ACA knew at the time the bill was passed this was not going to be a “one time event”; We knew We were going to have to revisit the issue; We knew the most important step was to get the metaphorical “ball” rolling. When the courts hand out such rulings which say, “Uh, You need to fix this,” We should grab those rulings as reasons to move closer to a single Payer healthcare program, saying, “Well, in order to keep Our system of harmonious liberty while also improving the well-Being of All, We have to move closer to a ‘Medicare for All’ system.” We can also use it as a lesson in making sure the law says what We actually want it to say before passing it instead of saying, “Oh, well the courts will figure out when We say ‘states’ We really mean the federal government.”

    Continuing on, however, there is no “radical incrementalism” in NFIB v. Sebelius, because as I demonstrated above the only quote You provide from the Chief Justice does not say what You say it says. Nor did the court take “an extraordinary step” any more than it did with Little Sisters of the Poor, an identical situation, on which the court issued an injunction unanimously. Nor is this “a case [the court] didn’t need to get involved” because it already had gotten involved in the principle when it agreed to issue an injunction in the Little Sisters case. The court in Wheaton College merely remained consistent with its prior rulings, as We should want it to do in the interest of legal stability, even if We do not like the outcome.

    As far as not intervening in the Texas case, if You will notice, the court tends to prefer to get involved in an issue when there exists a difference of opinion between the appellate courts; in the contraceptive coverage cases, there existed a difference of opinion at the time the Little Sisters injunction was issued; when the Texas intervention was denied, no such difference of opinion existed.

    Additionally, no where did the court promise it would not expand the contraception mandate exemption. Please cite the portion of the court’s opinion which says, “We will never expand the range of exemptions”. While One might say, “They said Hobby Lobby only applies to the original mandate,” the reasoning would be, as noted above, RFRA necessitates the analysis of objections on a case-by-case Objector-by-Objector basis.

    Lastly, these “slippery slope arguments” about multiple cases taking down the ACA are absurd because, when implementing a law which has to be so vast and complicated by necessity as the ACA, there are bound to be challenges to it. As I noted earlier, the courts are sorting out which provisions are permissible under which legal principles and just because One does not like the outcomes of those rulings does not make them wrong. The ruling do provide, however, reasons to argue in favor of a single Payer system.

    • fiona64

      Wheaton’s beliefs

      I’ll believe that a corporation has religious beliefs when I see a building sitting in a church pew.

      I do, however, concur with your point that single-payer would have avoided all of this.