THE SUPREME Court on Wednesday will again consider the Affordable Care Act’s requirement that all insurance plans provide free access to contraceptives. Some religiously affiliated nonprofit groups object — not to the requirement per se, but to the work-around the government devised to accommodate their theological opposition to contraception. The nonprofits do not have a strong case.
The government’s policy is to arrange contraception coverage for employees of these nonprofits, strictly segregated from the groups’ accounts, through their insurance companies. All the nonprofits have to do is fill out a simple form. They claim it is sinful for them to sign the form, which enables a process whereby someone else takes the time and expense of distributing contraception to employees who want it. The nonprofits argue that the government is not simply asking them to “raise their hand” in objection. They would have to give the government the names of their insurers, which the government would use to arrange for separate contraception coverage. The government “is forcing them to hand over the keys” to their health plans.
Yet even raising their hands in objection would set off a similar process that ended with their employees receiving contraception coverage. There is no clean way to fully reconcile the government’s interest in providing important preventative services and religiously affiliated groups’ demand that they have no part in it.
Thankfully, the law does not require that the government bow to the wishes of every person or group claiming that obeying generally applicable laws, such as paying taxes, is a violation of their religious liberty. Rather, the law requires that, if the alleged imposition on belief is “substantial,” the government must have exceptionally good reasons to enforce its policies over religious objections, and those policies must be sensitively crafted.
On every stipulation in that formula, the government wins in this case. The opt-out policy’s burden on religious belief is not substantial. The government and insurers would arrange for separate contraception coverage and separate payment schemes, in some cases directly financed by federal taxpayers. The information the nonprofits would provide is the minimum necessary to enable the government to meet its clear, scientifically justified goal of lowering the hurdles women face in obtaining contraception.
It is little wonder the nonprofits have resorted to hyperbole. They warn that siding with the government might leave “no constraint on forcing Muslims to hire caterers that will serve alcohol to their wedding guests; forcing Christian colleges to contract with cable companies that will provide ‘adult’ channels to their residents; or forcing Jewish schools to hire vendors that will serve non-kosher meals to their students.” But the government has no compelling interest in requiring any of those things.
The law requires the government to go a long way to accommodate religious objections — and in this case, it has done so.
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