How much distance from an immoral act is enough?
That’s the difficult question behind the next legal dispute over religion, birth control and the health law that is likely to be resolved by the Supreme Court.
The issue in more than four dozen lawsuits from faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral is how far the Obama administration must go to accommodate them.
The justices on June 30 relieved businesses with religious objections of their obligation to pay for women’s contraceptives among a range of preventive services the new law calls for in their health plans.
Religious-oriented nonprofit groups already could opt out of covering the contraceptives. But the organizations say the accommodation provided by the administration does not go far enough because, though they are not on the hook financially, they remain complicit in the provision of government-approved contraceptives to women covered by their plans.
“Anything that forces unwilling religious believers to be part of the system is not going to pass the test,” said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents many of the faith-affiliated nonprofits. Hobby Lobby Inc., winner of its Supreme Court case last month, is a Becket Fund client.
The high court will be asked to take on the issue in its term that begins in October. A challenge from the University of Notre Dame in South Bend, Ind., probably will be the first case to reach the court.
The Obama administration argues that the accommodation creates a generous moral and financial buffer between religious objectors and funding birth control. The nonprofit groups just have to say that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs.
To do so, they must fill out a government document known as Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other parts of the health law.
Roman Catholic bishops and other religious plaintiffs argue that filling out the government form, then sending the document to the insurer or third-party administrator, is akin to signing a permission slip to engage in evil.
People on both sides of this argument are looking to the Hobby Lobby case for clues about how the justices might come out in this next round.
In a Supreme Court filing, the Justice Department said the outcome strongly suggested that the court would rule in its favor when considering the nonprofits’ challenge.
Rienzi wrote in reply that the government is wrong to assume that the Hobby Lobby decision “blessed the accommodation.” He noted that Justice Samuel Alito specifically said the court was not deciding whether the administration’s workaround for nonprofits adequately addressed their concerns.
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