At midnight on December 31, 2013, Supreme Court Justice Sonia Sotomayor dropped the ball in Times Square, signaling the beginning of the new year. However, just a few hours earlier, the judge dropped a bombshell of a different kind, releasing an order that blocked one part of the Affordable Care Act from going into effect: the much opposed birth control mandate that caused over 100 religious organizations, non-profits and for-profit businesses with owners who believe birth control is immoral to sue the government to try to obtain exemptions.
Although it was initially heralded as an enormous victory for religious freedom, as well as a massive blow to the administration, soon it became clear that the temporary injunction wasn’t nearly the event it appeared to be. Justice Sotomayor blocked the birth control mandate from going into effect only for a select group of Roman Catholic nonprofits on the “Christian Brothers Employee Benefit Trust” health care plan. Among those was a group of nuns called “The Little Sisters of the Poor Home for the Aged,” who run a nursing home for low income clients. It also only blocked the groups from being fined, a process that was supposed to begin on Wednesday, instead allowing them to wait for a further ruling on Friday.
The mandate is not blocked from going into effect for pretty much everyone else in the country, and that includes all of the other organizations that so far have been suing to be allowed out of the new rule to provide no copay birth control and sterilization in their health plans. That includes the best known case, that of Hobby Lobby, the craft conglomerate that claims that being forced to allow their employees at all of their stores no co-pay birth control means that the business owners are indirectly participating in moral sins.
Although this injunction shows the possibility of some wavering among the court over whether the birth control requirement is constitutional, the exception would only be a very narrow one, for particular religious groups and religious non-profits specifically. The likelihood of that extending the right to for-profit businesses, just because their owners believe they should be able to enforce biblical principles on their employees, many of whom may not have an particular religious bet but simply need a job, is still pretty small.
As the administration already worked into their compromise with these so-called “religious” companies, the organizations and businesses would not be paying for coverage anyway, as the insurance plans are supposed to instead offer the option directly to the employee, leaving the employer out of it. But as Sarah Posner of Religion Dispatches notes, for that to happen the employers must file a paper saying that they will not be providing the benefit, and even the act of signing that paper is being positioned as an assault on their religious liberties.
“The accommodation requires them to self-certify as objecting religious organizations, thus placing the onus on their insurance plan’s third-party administrator to offer the coverage separately to employees,” writes Posner. “Objecting non-profits claim this arrangement still makes them complicit in providing the coverage they consider sinful, in that the self-certification would ‘authorize’ and ‘direct’ the coverage through the third-party administrator.”
It’s this sort of “participating in an immoral act” sleight of hand that we’ve watched exponentially grow in the last few years, from bus drivers refusing to take patients to Planned Parenthood to pharmacists refusing to fill prescriptions for anti-bleeding medications if they believe a patient had an abortion.
So despite the headlines proclaiming otherwise, the birth control mandate isn’t in any danger. At least, not yet. If the Supreme Court does choose to take up a case that involves the for-profit businesses who are simply trying to impose their worldview on their employees, however, that may be a different story.
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