Obamacare’s contraceptive mandate has always been a thorny aspect of the law, and it’s about to get thornier. A group of nuns is spearheading a Supreme Court challenge to argue that even filling out paperwork to be exempt from the mandate violates their religious freedom.
Justice Antonin Scalia’s death leaves the Supreme Court with eight judges, opening the door for a tie vote on the matter. That means their decision on the contraceptive mandate could have no federal repercussions, leaving women to abide by different versions of Obamacare depending on where they live, NBC News reported.
The group making all the fuss is the Little Sisters of the Poor, which runs homes for the low-income elderly. The Obamacare challenge is technically comprised of seven cases brought by groups who lost in lower courts, including the nuns, CNN explained.
This case is the second to target the contraceptive mandate and the fourth challenge to Obamacare.
On the government’s side of the issue, houses of worship are automatically exempt from adhering to the contraceptive mandate. For non-profit organizations that have religious objections or affiliated groups, the exemption is only granted via an accommodation.
— Kimberly Atkins (@KimberlyEAtkins) March 23, 2016
— The Economist (@TheEconomist) March 22, 2016
That’s because when Congress passed Obamacare, it established that preventative services for women were an essential element of public health. Therefore, group plans should cover a range of contraception at no cost.
Solicitor General Donald Verrilli contends that the accommodation to religious groups respects the “rights, dignity and autonomy of female employees” by providing “full and equal” coverage.
Those religious organizations beg to differ. The accommodation, they argue, still makes them complicit in the commission of wrongdoing — allowing women to obtain contraception. Wednesday’s Obamacare challenge seeks to have religiously-affiliated groups automatically exempt from the contraceptive mandate, just like houses of worship.
The accommodation currently requires them to notify the government about their objections in writing and provide information about their plan. The feds then tell the insurer that it must now provide contraceptive coverage for free instead.
Even though organizations like the Little Sisters are absolved of providing free birth control, the women in their employ are still able to get it. And that isn’t right as far as they’re concerned, according to Sister Constance Veit.
“That’s never been the point with us. The services would still become a part of our health plan, and that’s just something we can’t agree to.”
To be truly exempt from the Obamacare contraceptive mandate means no paperwork, no notification, and no backdoor method to use their health plan for birth control, said lawyer Paul Clement.
6 year anniversary of Obamacare pic.twitter.com/eVpjCoxPwn
— Alex Gangitano (@AlexGangitano) March 23, 2016
But Verrilli said this argument “stretches the Religious Freedom Act too far.” Simply put, the right to exercise religion doesn’t allow people to determine what kind of health coverage other people receive. These groups, he continued, are using their religious objections to control how the government manages Obamacare and its “internal affairs.”
These challengers aren’t just determined to be exempt from the contraceptive mandate — they want to keep the government from “filling the gap.”
And then there’s the matter of undermining one purpose of Obamacare: to ensure women have equal access to health care.
“Contraceptives are an essential component of women’s health care,” Verrilli said.
And if the challengers are victorious, that means women must take extra steps to figure out how to get contraception. Obamacare was meant to “ensure that women receive equal health coverage and to remove barriers to the use of preventative services.”
That may not be an issue if the justices are evenly split in their vote. In this case, a national precedent would not be set and the patchwork of lower court rulings would remain in effect. They could also take up the issue again when a new justice is appointed, a matter that is far from settled.
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