Obama has finally put the Supreme Court on the spot, ending the ongoing dance between the two that was started with the ruling Burwell v. Hobby Lobby. The administration is expected to announce a new policy that is designed to force the Justices to rule definitively on whether employers with religious objections to birth control can restrict their employee’s access to the vital medical resource, no matter how the government constructs the regulations and accommodations.
According to the Wall Street Journal, the regulation that Obama is expected to announce provides that:
“Institutions would have to tell the federal government which company administers their health-insurance plan, and the government would then contact that administrator to ask it to arrange contraception coverage for the institution’s employees. The administrator would likely turn to a traditional insurance company to fund the benefits, and the insurance company would later be reimbursed by the federal government.”
This regulation honors both the ruling in the Hobby Lobby and in the Wheaton College case. Per Hobby Lobby, the regulations take the Justices’ suggestion that they will tolerate a program that places contraceptive coverage in the hand of the insurer, not the employer. Per Wheaton College, it will honor the suggestion that employers can still be required to inform the government if they’re seeking an exemption from the law using some other method than a particular form they find objectionable.
These regulations will put the ball back in the Justice’s court. The remaining question is if the SCOTUS will tolerate the new rule’s requirements that religious employers “tell the federal government which company administers their health insurance plan,” which is a requirement that goes beyond the obligations imposed by the supreme court during its Wheaton College order.
The companies who have raised their voices the loudest against birth control often claim that they can’t take any action, at all, that would let someone receive contraceptive. Doing so, they claim, would make them complicit, as if denying a person medical care isn’t enough of a crime against humanity.
If the justices are determined to honor these “idiosyncratic” (read: idiotic) objections, then it’s not clear what the administration could do to provide additional accommodations capable of withstanding a SCOTUS review.
If the court did uphold the objections, a key limit in the federal religious liberty law would be gutted. By the language of the Religious Freedom Restoration Act, the federal government may not “substantially burden a person’s exercise of religion” except under certain circumstances.
Now, if those circumstances do not include requiring someone to write a two sentence letter naming an insurance company, then anything can be a substantial burden — such as requiring religious institutions to stop discrimination.
Regardless, the Obama Administration’s new rules are likely going to force the SCOTUS to make a solid stand, rather than their milquetoast, obscure goal-post shifting rulings. The new rules comply with all of the previous suggestions by SCOTUS opinions, and now, the country waits to see if Hobby Lobby permits this latest set of rules, or if the Supreme Court is going to throw all of America under the bus to appease their wealthy masters.
Frankly, I’m willing to bet it’s the latter. Our only recourse then will be to gut the RFRA, and hopefully replace it with a law that doesn’t offer any religious exemptions, whatsoever, to anyone.
h/t: Think Progress