Share it

Emma_Cross_phObamacare’s troubled inauguration continued last week, with religion the cause of its latest set-back. On New Year’s Eve, the US Supreme Court’s Justice Sonia Sotomayor granted an injunction which temporarily blocked the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act from being enforced against a Denver-based congregation of the Little Sisters of the Poor.

The contentious contraception mandate requires employers to include minimum women’s preventative-healthcare coverage requirements, including birth control, in the health insurance they offer to workers. Perhaps unsurprisingly for a country where religion is often the source of policy fights, this provision has repeatedly plagued President Obama, with many opponents arguing that it forces them to ‘violate’ their religion.

Indeed, the strength of the opposition to date has already resulted in the administration allowing religious-affiliated organisations to self-certify that they have religious objections to providing coverage or contraceptive services.  In such cases, contraceptives are available to employees from health insurance providers or other ‘administrators’ directly. 

The White House’s position is that it ‘…remain[s] confident that [its] final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objectives to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage’.  ‘Not so’ argue the Little Sisters.  They say that the effect of this self-certification is to de facto authorise contraceptive coverage to be provided, albeit by others and so by doing sothey ‘would be required to actively facilitate and promote the distribution of these [contraception] services in ways that are forbidden by their religion.’

At the heart of this case is whether rights granted by the Religious Freedom Restoration Act 1993 (“RFRA”) are sufficiently infringed.  RFRA provides that the government shall not substantially burden a person’s exercise of religion unless the application of that burden is the least restrictive means to advance a compelling governmental interest.

The administration responded to Justice Sotomayor’s order by urging for the contraceptive mandate to be maintained, stating that if third-party administrators provide contraceptive coverage to employees of a self-certifying religious objector, they do so despite an organisation’s assertion of their religious objections, not because of those objections: religious groups are allowed to remove themselves and stand back from the provision of the coverage.

The administration also pointed out the unique specifics of the case, which they say undermine the applicant’s argument. The church plan in question is exempt from the preventative-healthcare regulations, owing to provisions in the Employee Retirement Income Security Act 1974 (which bans any government regulation of an employee benefit plan run by a church). The effect of this is that should the third-party administrator indicate that it will not provide contraceptive coverage (which has in fact been done in this case by the Christian Brothers administrator), there is nothing that the government can do to compel it otherwise: ‘Given these circumstances, [the] applicant’s concern that they are ‘authorising others’ to provide coverage lacks any foundation in the facts or the law’.

The injunction is only temporary and it is as yet unknown whether Justice Sotomayor will maintain, remove or further debate the block. What is certain however is that this is far from the last legal challenge that President Obama’s health reforms will face.