Not long ago, I did an article for National Catholic Register on the recent Supreme Court decision concerning the Obamacare mandate regarding contraception. As always, there was too much material derived from the interviews to use in the article. So if you’re interested in this issue, you’ll definitely want to read these interviewees’ comments.
Sr. Constance Veit, LSP, spokeswoman, Little Sisters of the Poor
This is a victory because the Supreme Court vacated the lower courts’ decisions, so we go back under new terms, with a clean state. The threat of $70 million/year in fines, which would have put us out of existence here in the United States, no longer applies. You can’t underestimate the importance of the decision because the Court told the government this [providing contraception] could be done in other ways without involving us. We are no longer in danger of being forced to provide services that violate our Catholic faith. So while it’s not yet the end, it’s close to the end. The Court definitely recognized our religious objections as legitimate.
The Court recognized that the government doesn’t need an order of Catholic nuns to provide services against our will. This became obvious during the oral argument and then in the government’s supplemental brief. The government admitted on p. 14 of their brief that they could achieve their goals without involving us, since 1/3 of Americans already have to get contraceptives through other means because they are not covered by the Mandate. The fact that so many American’s had already been exempted proves that there are other ways they could be treating us as well.
This decision today was unanimous, but Justices Sotomayor and Ginsburg issued a concurrence stating some reservations. Justices Kagan and Breyer could have been expected to take the same position as Justices Sotomayor and Ginsburg, but they did not.
Our objection was never a matter of a signature on a form. We could not sign the form because it was not an opt-out. Rather it was an opt-in giving HHS the right to come in and alter our health care plan to include those [contraceptive] services. So it was a permission slip to come in and change our religious health plan according to their terms. The Supreme Court has instructed HHS not to require us to sign any forms. The government has been saying all along they couldn’t change our policy without our express written permission, but now they admit they didn’t really need permission to change our health care coverage, that there are other ways to achieve their goals. What that will look like will be determined in the lower courts.
The bottom line is that we know we’re protected now and we will not be forced out of existence here in the United States by those huge fines we were facing.
Daniel Blomberg, lawyer with the Beckett Fund
It’s important to recognize that all eight members of the Supreme Court are on board with this decision. The Becket Fund’s Mark Rienzi was in the Court to hear the opinion announced, and said Chief Justice Roberts specifically stated that this was a unanimous ruling of the Court. This opinion is a very good decision for religious liberty.
The Sisters were in a situation where they would be forced to violate their faith or pay massive fines. In response to the Supreme Court’s order for supplemental briefing, the government told the Court that they can find other ways of providing these [contraceptive services], that there’s a different option. This win shows that religious liberty doesn’t have to be a political football going between one side of the aisle or the other.
The government has come after the Sisters for years. We may still have to fight the government on this, but the government has had their ability to fine removed from them by the Supreme Court. If this is a punt, it’s one that puts the Little Sisters in excellent field position. But here’s the thing: This is not a zero sum game. The Sisters aren’t saying the government can’t do what it wants. It just needs to leave the Sisters out of this. That’s all they’ve been asking for all along.
[With the supplemental brief filed after the hearing in March]: That was the tenth time the government changed positions about important parts of its contraception delivery scheme.
This is a win-win for everybody.
The issue for the Sisters was never just about signing a form, though that’s a serious enough concern. We don’t force prison officials to sign papers to execute someone on Death Row if that’s against their religious beliefs. America protects people from having to do things they find morally objectionable. We do that all the time. Signing a piece of paper can be a very big deal. But the primary issue is that the Little Sisters have a health care plan, and the government wants to use that health plan, forcing the Sisters to cover something that goes against their religion’s teachings. The government was hijacking a plan that the Sisters built, maintain, and are involved with on a daily basis. This government is the most powerful on the earth, and it has lots of ways to provide contraceptives. All the Sisters are saying is, ‘Just leave us out of this.’
Government can do the right thing and stop its aggressive assault on the Little Sisters, and the SCOTUS decision recognizes that. The ball’s in the government’s court in that respect. If they want to keep coming after the Sisters, they could create yet another new bad solution, which it’s done 10x in the past. It’s possible they will do that again here, but we’re hopeful won’t be the case. The Supreme Court has given a judicial roadmap for the right solution, a win-win for everyone.
Josh Earnest, spokesman for the President
We were gratified by the ruling today. And this announcement does ensure that millions of women across the country can continue to have access to their health care. And it is a reflection of something that we have long believed, which is that it is possible to prioritize both access to healthcare for everybody, while protecting the religious liberty of every American. That’s what we sought to do, and we obviously are pleased that this is something that will continue to remain in effect.
President Obama: “I don’t know why they punted, but my suspicion is if we had nine Supreme Court Justices instead of eight, there might have been a different outcome.”
Still unsure where the coverage would come from: As an add-on where people can buy contraception for their policy or from a completely independent source.
“Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company.
“… the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”
Prof. Robert Destro, Catholic University of America Law School
The Court’s decision was unanimous but with a caveat. You can see Court is still somewhat divided. Sotomayor and Ginsburg bent over backward in their concurring opinion to point out that the lower courts are free to start over.
- You mean they could simply return the same verdict as before.
Yes. They could in a sense. What the Court basically said is, “Look now we have a really good sense for what the facts are [concerning each side’s “bottom line” accommodation]. The government did its posturing. The Sisters clarified what they could live with, so rather than us intervening at this stage, go figure out what deal the government can strike with the Sisters and other religious organizations concerning the accommodations and get back to us.’ Technically, the government could still say [what it’s been saying all along.]
Really I don’t think the Court’s liberal members have migrated anywhere. They did what comes naturally, which is to say, ‘Look it’s the job of the lower courts to figure exactly what the facts are. The reason we’re vacating the lower court decisions is that all [roadblocks toward reaching a solution,] they’ve all gone away, so go back and start at the beginning.’ This is not exactly right, but it’s close. Entirely my fault.
The liberal members of the Court have not changed their position on the right of women to contraceptive coverage. Nor have the conservative members of the Court changed their position that the government appears to be overreaching, and that some accommodation is necessary given the government’s willingness to accommodate others.
The order issued after the oral argument was designed to clear up a factual question: What are respective “bottom lines” of the parties? Now that they think they have the answer to that question, they can safely send the case back to the lower courts to see how close the parties come to an agreement on the disputed issue.
[Justices Sotomayor and Ginsburg made it clear that the lower courts are free,] if they think they were right the first time around, they can reaffirm their prior decisions, but before they can do so, they must assure themselves that these “new” facts are taken into account. That’s the fairest reading of their opinion. In fact, they make a laundry list of what the Court is not doing. ‘We haven’t found there’s a burden. We haven’t looked at less burdensome alternatives, so let’s have you get that done, and we can consider the case anew if it comes back to us.’
[The ruling was] was certainly the best solution for the Court, and for the Little Sisters (and others.) It pushes the case back to the lower courts, “vacates” their opinions so that there is a clean slate, and gives the Little Sisters and the Government some time to determine whether there is a workable solution. It is also a good solution for the Court, both as it’s currently constituted. It’s also a good solution even if it had a full Court because the Administration has been playing double shuffle on this issue for such a long time. This is because it’s not really possible to determine what the “mandate” really means.
For example: churches, Coca-Cola and other large companies and some unions are exempt from the mandate. If you can exempt Coca Cola and other big companies and churches, why not the Little Sisters? While we can guess that it’s probably because [the big companies] already cover contraception and it’s problematic to require a “church” (however that’s defined) to act in violation of its own teachings, we cannot know for certain why they drew the lines this way until we know just how flexible the Government is willing to be in practice. The Court should not be deciding any cases when the facts are not clear.
Draw one box for the employer and another off to right for the employees. Down below, draw a third box. The third box is the EBT: employee benefits trust.
When you look at your paycheck, you will see that the pay stub shows payments for all of your fringe benefits, including health insurance. It shows your “share” and the “employers” share. This makes it look like the money is coming from both employer and the employee. The economic and tax reality is that both “shares” belong to the employee because fringe is a part of your compensation (pay) package. The tax laws make this very clear: The cost of employer-provided health care is otherwise indistinguishable from “pay”, but Congress excludes the value of that insurance from your income.
Creating a trust is the only way to segregate what belongs to the employees from money that belongs to the employer. Once paid into the trust, the money ceases to belong to the employer. It belongs only to the employees and can be used only to support their benefits. So all of the money in third box belongs to employees, none to employer.
The Little Sisters’ argument was that “Our EBT—which is serviced by the Christian Brothers—is set up in accordance with Catholic social teaching. We will not allow the money in that trust to be spent in a manner inconsistent with Catholic teaching, and we will not give the government the power to hijack that money for its own purposes.
The government’s proposed accommodation/solution was to require the Little Sisters to, ‘Sign a form.” Most press accounts reported that the only purpose of the form was to give formal notice to the government of their objection. That’s not accurate. ’ The Little Sisters refused to sign the form because the form also gave the government control of the EBT. It was as if the Government would say: ‘Turn the convent over to us, and we’ll run it.’ And the Little Sisters said, ‘No. We administer the assets we control as administrator in accord with our religious beliefs. We will not turn that money over to you because you’ll use the money for medicines and services that we cannot support.
In the Little Sisters’ view, signing the form would have been the equivalent of your giving me your debit card and the pin. Once I had it, I could use the money in your account to pay for contraceptives, abortions, or whatever. This is why I told you to “follow the money.” It’s all about control of the money.
Now we’re back to Square 1. We now understand how payments for health insurance premiums are paid and how plans are administered. If payment for contraceptive and abortifacient coverage does not come from inside the EBT box, where does it come from? There are only two possible choices: 1) either from the government itself, which would need to use its own money to pay the cost of birth control, just as it does in Medicaid and the Title X program, which provides free contraceptives; or 2) the employee will have to buy a policy that includes birth control coverage, or get a rider to their existing policy that provides such coverage that’s paid for separately from the policy purchased on the employee’s behalf by the EBT.
This is a big problem, both practically and legally. If you then go back and read Sotomayor’s concurrence and the Administration’s consistent position since the beginning of this controversy, the whole point is [that contraception coverage is] supposed to be seamless, transparent, etc. The employee should not even have to ask for the coverage, and (they argue) certainly should not have to pay out of pocket for separate coverage.
There are several possible solutions to this problem. One of them is just to make contraceptive available over the counter. If they do that, no one’s insurance will pay for them because they will no longer be prescription drugs. You can get Plan B and condoms over the counter, why not birth control pills and devices?
There are several answers to this question: Once again, you must follow the money.
- Birth control pills are cheap and easily accessible. It can’t be the cost because poor women and most students can get their birth control pills free under Medicaid or under Title X.
- So we must ask, who “loses” if birth control becomes over-the-counter:
- Planned Parenthood. Every year, PP provides millions of birth control prescriptions and pills and charges for both services.
- Women who believe that all forms of birth control should be “free” (that is: paid for with someone else’s money).
- Does this proposed solution solve the Little Sisters’ problem: No.
- Long-term “injectable” birth control like Ella would need to remain prescription because of the health risks associated with these drugs. These drugs provide temporary “chemical” sterilization.
- Some IUDs might require prescriptions. (Don’t know for certain.)
- Surgical sterilizations and abortions.
Unless you clearly follow the money, you will not understand that – to the Government and mandate supporters – “free” means either 1) the employers pay; 2) the government pays.
The next question is then: With whose money? Once you understand this question, three further questions arise: Where will they get the money to pay? Whose money is it?; and Who pays it to whom?
- Where will they get the money? There are five possible choices:
- The employees (out-of-pocket), either over the counter or via premiums paid to insurers
- The employers (e.g., Little Sisters) with money in addition to that which is paid to EBT
- The EBT (i.e. from the employees of the employer who have chosen to take benefits)
- The insurance companies from their own money
- The federal government –from money authorized and appropriated by Congress for that purpose.
- Whose money is it?
- Out-of-pocket money clearly belongs to the employee. Under the first Obamacare decision, the federal government cannot force people to spend their own money on insurance. Thus, there is no possibility here of a new mandate.
- The employers cannot be forced to pay for health care goods and services from their own money either. Once the money goes into the EBT, their contractual and statutory obligations to the employee and the government have been met.
- The EBT: This money belongs to the employees who participate in the health care program sponsored by their employers.
- Forcing them to pay for goods and services they don’t need or want has the same constitutional problems as (a).
- Unfortunately, the EBT is also likely to include money owned by employees who might want contraceptive drugs, devices or services. This leaves employees who want these drugs and services unable to access their own money to pay for them – or to buy insurance that covers them.
- The insurance companies from their own money. Such a requirement would be clearly unconstitutional. Under the Fifth Amendment, the government cannot command the expenditure of money for the private benefit of others.
- The federal government –from money authorized and appropriated by Congress for that purpose.
- Under the current setup, this is what the government claims to be doing. There are several problems here, so you must – again – follow the money.
- Upon receipt of the objection from the religious organization, the insurance company pays for the contraceptive goods and services, and then seeks reimbursement from “Exchange fees”: i.e. the money that insurance companies pay the federal government to participate in the Exchanges.
- The problem with this option is that there is no statutory authorization to use this money in this way. Exchange funds are to be used only to run the Exchanges, not to purchase insurance to defray the cost of contraceptives. This use of federal money is thus neither “authorized” nor “appropriated”. The recent House of Representatives case speaks to this issue.
- Exchange fees are drying up as insurance companies drop out of various state markets. It’s possible that there will not be enough money, state-by-state, to pay from Exchange funds.
- Another option would be for the federal government to pay directly, either by putting women into Medicaid, or finding some fund created by the ACA from which they could take the money.
- Medicaid is not possible. Medicaid is subject to statutory eligibility restrictions. Only Congress can change these rules.
- Other slush funds created by Obamacare. There are several huge slush funds created by Obamacare. The “Prevention Fund” is one of them. Unfortunately, these funds are not authorized or appropriated to buy insurance or contraceptives.
- Existing Title X and other contraceptive-related programs also have eligibility restrictions. Only Congress can change them.
- Offering tax credits: Not authorized by the tax law.
- The only plausible option is for the federal government to “accommodate” both employers and employees by authorizing the creation of a true Health Savings Account (HSA) that would permit the employer to pay into that account for any employee who wants to opt-out of the employer-sponsored program and buy their own insurance.
- This would mean that all employees and employers would be accommodated. Health insurance would become the employee’s responsibility (the employers would no longer have to shop for insurance policies if they didn’t want to); pro-life employees could buy conscience-friendly policies; and those who want contraceptives and services could buy policies that cover them.
- Unfortunately, it’s questionable whether such an accommodation is legal. I don’t think that the LSPs would mind, nor would most other employers, but it will drive the fans of Obamacare crazy because it is diametrically opposed to the “single-payer” option so favored by Bernie Sanders and Hillary. It would also run counter to the caution of Justices Sotomayor and Ginsburg that the entire payments process be “transparent” to the employees.
For obvious reasons, the Administration is going to try to make this work. They will continue to push hard on this issue, but where they come out depends on how creative they can be in the remaining months of this Administration. The litigation process alone will take us beyond the Administration.
That said, you must remember that the Administration’s die-hards on this issue really do believe that the Church is in a war against women. Fortunately, their ability to fine or tax has been taken [away from them]
They don’t like the Church’s teachings. End of story. Their view has always been “We won [on Obamacare], you lost, so get over it.” So in the end the Court actually did the right thing. They are requiring that the misunderstandings be cleared up.
As you can see from this note, there are a lot of misunderstandings about how the system actually works. I would suspect most courts have not even had anyone draw those boxes and trace the money for them. You need the visual to get people to understand: ‘Here’s a pot of money. Who has (or can get) access to it?’
The [EBT] box is where all the health insurance money is. That money belongs to the employees and is being held in trust. If the Little Sisters declared bankruptcy tomorrow, their creditors couldn’t get at it because it’s not the Sisters’ money.
The government can dig in its heels all it wants, but there’s still lots of ammunition in the Little Sisters legal arsenals. Contraceptives aren’t free. Where do you get the money to pay for them? The theory is that they must be free – that is: without copay. So the ultimate question is “who pays?” So if contraception has to be free to the recipient—and really it’s not. You’re just not paying a copay [, but it’s coming out of your premiums. It’s] not really free … money coming out of pocket in that trust, do you foresee to pay for someone else’s birth control pills.
So either government has to come up with money itself, for which there’s no appropriation [or create a mechanism] where people [can] access their own money or [they] will have to access [an FSA] or [make it available] over the counter or rewrite [the Affordable Care Act].
If you approach [this] as a tax problem and work from bottom up and not as [an issue of] conscience and work from top down, it’s relatively easy to solve this problem with tweaks of the tax law.
[Sotomayor]’s not thinking ahead. You have to use someone else’s money – it’s not the Little Sisters’ money – so if we’re going to seize money … [the government is] not allowed to take private property for private use. Women’s access to contraception is not a public benefit like parks and roads[, so it’s a private use, and therefore you can’t take private money to pay for a private use]. You can levy a tax, which is what they do for Medicaid, but that’s [not] what they’re proposing here.
So Sotomayor is not thinking all the way down the road. These women have a statutory right to get their birth control paid for? Fine, but who’s going to pay for it? You either have to take it out of tax revenue or take it out of people’s pockets.
The Administration is very ideological. They think these [petitioners] are a bunch of Neanderthals, and they don’t care that they think this is an excuse to support women. They don’t care what your views are. They understand that the Church is anti-birth control. They think it’s anti-woman. They’re going to dig their heels in, and they’re going to force these issues to be decided in the courts.
- So just how does the “accommodation” allow the government to “hijack” the plan?
The form has in it a provision where they step into the shoes of the Sisters. Basically the Sisters turn it over to the government and let them run the plan and gives them access to all employees information, their health record, let’s them into the file room so they can contact people on behalf of the plan so they can say, “By the way, the government is giving you these rights.” What the Little Sisters and others are saying is, “We’re not going to be your partners. If you’re going to do this you’re going to do it on your own. You’re not going to get any help from me.”
It’d be like you turning over your e-mail address to me. I’d be sending out messages under your e-mail address.
Notre Dame didn’t accommodate them. The 7th Court of Appeals said they had to turn over their information. Then all the ND employees got a notice from government via plan, and many were not happy.
The whole idea of the Sisters and others is, “We don’t want anything to do this this. This is your policy proposal. You take care of it. Leave us out of it.”
Douglas Laycock, RFRA expert, religious freedom expert, University of Virginia Law School
It’s a win for the religious groups in the sense that they live to fight another day. But they didn’t win anything on the merits, and there were very serious disagreements between the two sides in the supplemental briefing. I think the lower courts will find those disagreements unbridgeable — certainly with respect to self-insured plans, where there was no pretense of agreement, and probably with respect to insured plans as well.
The Court bought time and probably hopes to be returned to full strength before these cases come back. It is likely to be disappointed. There probably won’t be a new Justice seated until October 2017.