One of the many odious parts of Obama’s Affordable Care Act was his administration’s attempt to use health care, particularly women’s health care, as a cudgel to demolish any organized opposition to abortion or contraception. Under the guise of defining minimum benefits required to be offered by health insurance plans, abortion and contraception were baked in.
For instance, employers were required to provide women with ‘preventive care and screenings’ without ‘any cost-sharing requirements.’ Fair enough, you might say, but it went on to charge the Health Resources and Services Administration (HRSA) with the responsibility of determining what that ‘care and screenings’ looked like. No huge shock when it was ruled that access to birth control pills was essential preventive care.
In light of the Burwell v. Hobby Lobby Stores decision, which ruled that forcing employers to provide birth control coverage potentially violated the First Amendment, the Obama administration constructed a test to be used by employers seeking the exemption to comply with the SCOTUS decision. Churches automatically received an exemption, religious orders did not but they could ‘self certify.’ The Catholic religious order, the Little Sisters of the Poor, refused to self-certify:
They challenged the self-certification accommodation, claiming that completing the certification form would force them to violate their religious beliefs by “tak[ing] actions that directly cause others to provide contraception or appear to participate in the Departments’ delivery scheme.” Id., at 1168. As a result, they alleged that the self-certification accommodation violated RFRA.
The Trump administration promulgated a policy exemption that allowed the order to avoid either providing contraceptive coverage or self-certifying. The Little Sisters were happy but the Pennsylvania state government wasn’t. It filed suit and a pro-abort federal judge ruled that the exemption was illegal and…wait for it…issued a nationwide injunction. The federal government appealed to the Third Circuit and New Jersey joined the lawsuit also demanding that an order of celibate religious women be required to purchase health insurance that provided contraceptive coverage. The Third Circuit agreed with Pennsylvania and New Jersey.
“We are overjoyed that, once again, the Supreme Court has protected our right to serve the elderly without violating our faith,” said Mother Loraine Marie Maguire of the Little Sisters of the Poor, whose employees work in the group’s facilities. “Our life’s work and great joy is serving the elderly poor and we are so grateful that the contraceptive mandate will no longer steal our attention from our calling.”
White House press secretary Kayleigh McEnany said in a statement that the decision was “a big win for religious freedom and freedom of conscience.”
“Since Day One, the Trump Administration has sought to lift burdens on religious exercise for people of all faiths,” she said, adding the administration would work to allow “women who lack access to contraceptive coverage because of their employer’s religious beliefs or moral convictions to more easily access such care” through federal programs.
The decision is potentially much broader than just a single order of nuns.
The decision allows the Trump administration to move forward with rules that would allow virtually any employer to claim a religious or moral exemption to providing birth control coverage. As a result, between 70,000 and 126,000 women could lose free birth control coverage, according to previous administration estimates.
“It is clear from the face of the statute that the contraceptive mandate is capable of violating [the religious freedom laws],” Justice Clarence Thomas wrote in the opinion.
Justices Elena Kagan and Stephen Breyer agreed that the Trump administration had the authority to grant religious exemptions to the birth control mandate, but they said the case should be sent back to lower court for further review. In a concurring opinion written by Kagan, they questioned whether the Trump administration followed proper administration procedure in creating them said the carve out is overly broad and “causes serious harm” to birth control access.
Justice Ruth Bader Ginsburg in a sharp dissent joined by Justice Sonia Sotomayor said the decision favored religious freedom to the detriment of individual rights.
“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote.
The critical thing about the decision is that you are presumed to be acting in accordance with your faith, you don’t have to prove it to the satisfaction of some fat fascist pro-abort in some government agency. And as to Ginsburg’s statement, there is literally no countervailing right or interest that involves contraception when it comes into conflict with an enumerated right.
This is going to be portrayed as some Romney-esque ‘war on women’ but it is a positive development in restoring the right of Americans to live their faith rather than reducing, as Obama tried to do, faith to some sort of cultural artifact that could be harnessed for purposes of political identity but which was not lived at all.