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Justices Sharply Divided In Latest Obamacare Birth Control Mandate Case

Birth Control Mandate

Yesterday, the Supreme Court heard oral argument in the latest round of lawsuits to reach the nation’s highest court dealing with the contraceptive coverage mandate issued by the Department of Health and Human Services pursuant to the Affordable Care Act and the claims of certain employers that providing such coverage is a violation of their religious liberty as guaranteed by the Religious Freedom Restoration Act, returning the Justices once again to the issues they last dealt with in Burwell v. Hobby Lobby. The issues in these cases, though, are somewhat different from those the Court dealt with two years ago and, thanks to the vacancy created by the death last month of Justice Antonin Scalia, it’s unclear that the Court will be able to come to any sort of consensus that would be sufficient to allow for a majority opinion:

WASHINGTON — The Supreme Court weighed moral theology and parsed insurance terminology on Wednesday in an extended and animated argument that seemed to leave the justices sharply divided over what the government may do to require employers to provide free insurance coverage for contraception to female workers.

A 4-to-4 tie appeared to be a real possibility, which would automatically affirm the four appeals court decisions under review.

All four ruled that religious groups seeking to opt out of the requirement that they pay for the coverage must sign forms and provide information that would shift the cost to insurance companies and the government. A tie vote in the Supreme Court would not set a national precedent, and religious groups in different parts of the country would have conflicting obligations if they object to covering contraception.

Other appeals courts have also agreed that the accommodation offered to religious groups is lawful. But the United States Court of Appeals for the Eighth Circuit, which hears cases from federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled that it violated the Religious Freedom Restoration Act of 1993.

Wednesday’s case grew out of a regulation requiring many employers to provide the coverage for contraception under the Affordable Care Act. Religious institutions like schools and churches have said that forcing them to comply with that violates the religious freedom law. They also objected to an alternative offered by the government that would allow them to opt out of the requirement by completing a form.

The court’s four more liberal members appeared ready to endorse that alternative.

“There has to be an accommodation,” Justice Ruth Bader Ginsburg said. “And that’s what the government tried to do.”

But it appeared unlikely that the liberal justices would be able to attract the crucial vote of Justice Anthony M. Kennedy, who repeatedly questioned whether the accommodation was making the groups “complicit in the moral wrong” by hijacking their insurance plans.

Though Justice Clarence Thomas asked no questions, there was little doubt where the three more conservative justices stood. Justice Samuel A. Alito Jr., for instance, citing arguments in supporting briefs, said the government’s approach represented “an unprecedented threat to religious liberty in this country.”

Much of the argument concerned whether the government could provide free contraception coverage without using the groups’ insurance plans. Justice Alito suggested, for instance, that the government could use the insurance exchanges created under the Affordable Care Act.

The burden on women would be minimal, Justice Alito said. “So she’ll have two insurance cards instead of one,” he said.

But Justice Sonia Sotomayor said it was important to make obtaining coverage easy.

“When contraceptives are provided to women in a seamless way,” she said, “the number of unintended pregnancies dramatically falls, as does the number of abortions.”

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said Justice Alito’s alternatives would be cumbersome and would not “come anywhere close to being equally effective in ensuring that women get this coverage.”

Chief Justice John G. Roberts Jr. seemed to view that answer as a major concession.

“Your compelling interest is not that women obtain the contraceptive services,” the chief justice said. “Your compelling interest is that women obtain the contraceptive services through the insurance plan or the third-party administrator hired by” the religious groups.

“The petitioner has used the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do,” Chief Justice Roberts said.

But Justice Stephen G. Breyer said a cumbersome process involving two insurers would dissuade some women from obtaining contraception. He added that “this is not hijacking because there is a federal regulation that says the infrastructure of the insurers’ contraceptive-related plan belongs to the insurer, not to the person who buys the insurance.”

Mr. Verrilli agreed, saying the alternatives would “result in significantly less use of medically necessary services.”

The answer did not seem to satisfy Justice Kennedy. “That’s why it’s necessary to hijack the plans,” he said caustically.

“The church plans here, religious organization plans here, are, in effect, subsidizing the conduct that they deemed immoral,” Justice Kennedy said.

Paul D. Clement, a lawyer for the order of nuns the Little Sisters of the Poor and other challengers, said his clients should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship do not have to file any paperwork if they choose not to provide contraception coverage.

He added that many other employers were also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes.

Chief Justice Roberts said the argument had force: “If you have a lot of exemptions, it undermines your argument that this is such a compelling interest.”

Mr. Verrilli said, “No line is perfect, and I’m sure this line isn’t perfect.” But he said the government had drawn sensible and commonplace distinctions.

Justice Breyer questioned Noel Francisco, a lawyer for a second group of challengers, describing a federal program filled with haphazard exemptions and asking whether it would violate the religious freedom law.

Mr. Francisco said sure.

“O.K.,” Justice Breyer said. “I’ve just described to you the United States tax code.”

On this point, at least, Justice Kennedy seemed to take the government’s side. “It’s going to be very difficult for this court to write an opinion which says that once you have a church organization” entitled to an exemption, “you have to treat a religious university the same.”

All of the justices who addressed the issue agreed that the challengers’ religious objections were sincere. But the more liberal ones said a pluralistic society required compromise.

“Sometimes when a religious person who’s not a hermit or a monk is a member of society, he does have to accept all kinds of things that are just terrible for him,” Justice Breyer said. “Think of the Quakers who object to Vietnam. Think of the people who object to laws protecting blasphemy. Think of the people who object to shoveling the snow in front of the walk that will lead to the abortion clinic.”

The more conservative justices were more apt to credit the challengers’ objections. “You’re saying,” Justice Kennedy told Mr. Verrilli, “‘Don’t worry, religions, you’re not complicit.'”

Lyle Denniston summarizes the argument:

The Obama administration had four Supreme Court Justices quite plainly on its side Wednesday in the latest fight over the new health care law, but that may be all that it had because there was no way to stop other Justices from thinking — and thinking negatively — about a single word: “hijacking.”  In a real sense, the fate of the Affordable Care Act’s birth control mandate, at least for the near future, could well be bound up with that word.

“Hijacking” is what a long list of religious institutions that object for reasons of faith to contraceptive methods have used to describe what they say the federal government will do to their health-care plans as it moves toward providing free birth control to those institutions’ female employees and college students.  And, if there was a startling moment during the ninety-four-minute hearing on Zubik v. Burwell, it came when Justice Anthony M. Kennedy deployed that word in obvious sympathy to those institutions.

On an eight-member Court, with the late Justice Antonin Scalia not yet replaced, it was clear going into the Justices’ fourth review of a major controversy over the ACA that there was at least a possibility of a four-to-four split.  Four Justices remain from the majority, and four from the dissent, in the ruling two years ago that limited the government’s power to provide free contraceptives to the employees of for-profit businesses with a limited ownership by religiously devout families objecting to some forms of ACA-mandated birth control.

But among the four in the majority in the Burwell v. Hobby Lobby Stores decision was Justice Kennedy, and he had made a considerable effort then to make that ruling seem quite narrow.  In fact, in a separate opinion then, he openly endorsed the technique the government had used for non-profit religious institutions, to allow them to opt out of the birth-control mandate, and suggested it would work for for-profit companies, too.  But that is the very “accommodation” approach that, on Wednesday, he labeled a form of “hijacking” of non-profits’ health plans.

It might be that, if that had been Kennedy’s only comment during the lengthy and high-spirited hearing, it might not have been so telling.  But it was among a number of his other remarks and questions that appeared to show a significant concern for the ability of religious charities, hospitals and institutions to keep control of their own employee benefit plans. (He did make one passing comment that it would be hard for the Court to write an opinion that, if the government had provided an exemption for churches — as it does under the ACA birth-control mandate — the government had to exempt every other religious institution, too,  But that skepticism was reserved for an alternative argument by the non-profits that the government’s differing treatment of religious institutions made no sense, and that argument seemed to attract little support on the bench.)

The written transcript of the hearing showed that “hijack” and “hijacking” were heard a total of seven times.  It was first spoken by Washington, D.C., lawyer Paul D. Clement, early in a high-energy performance complaining about the government supposedly attempting to put his clients into the role of “conscientious collaborators” in the violation of their religious beliefs.

On the other side of the Court’s seeming divide on Wednesday, Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor left no doubt whatsoever that they were prepared to side with the government’s view of the perceived benign effect and operation of the ACA mandate.  Justice Stephen G. Breyer spent a good deal of time expressing difficulty in drawing a line to define what was allowed or not allowed under the ACA mandate as it applied to religious institutions, but the thrust of much of his questioning seemed quite supportive of the government.

If those four do vote, when the Court takes up the case for discussion at this Friday’s private Conference, to uphold the ACA mandate, they may well find the Chief Justice and Justices Alito and Kennedy on the other side.  (The chances are that Justice Clarence Thomas, who was part of theHobby Lobby majority two years ago, would be sympathetic to the religious institutions’ claims, although he said nothing on Wednesday.)

Such opposing alignments could mean the Court would vote four to four on the outcome.  If the Justices concluded that that was the only option available to them as an eight-member Court, the effect would be to uphold the federal appeals courts’ decisions that the Court was reviewing on Wednesday; all had gone in favor of the ACA mandate.  A four-four split would actually set no precedent and it would not resolve the existing conflict among appeals courts on the validity of the mandate under the Religious Freedom Restoration Act.   Eight appeals courts have sided with the government, but one — the U.S. Court of Appeals for the Eighth Circuit — had ruled in favor of the religious non-profit institutions’ challenge to the ACA mandate.

What that would mean, at least in the short term, is that women who lived in the geographic areas of the eight federal appeals courts that have upheld the mandate could begin to receive free contraceptives under the mandate, perhaps until the Supreme Court could in the future take up the question again.  The government has appealed Eighth Circuit’s ruling against the contraceptive mandate to the Justices, and the Court could turn to that next.

But, with the prospect that the Scalia seat would remain open for some period of time amid squabbling between the White House and the Senate over who would succeed Justice Scalia, there would not be much prospect for the Court to do better than a four-to-four split on any new case testing the mandate’s legality.  That would leave the rather bizarre effect that the mandate was in effect in much of the nation, but not in the seven states that are located in the Eighth Circuit: Arkansas, Iowa, Minnesota, Missouri, Nebraska, and North and South Dakota.

These cases are notably different from Hobby Lobby and the other cases that were first filed by business owners who claimed that they were being asked to violate their religious beliefs via the mandate that they provide insurance coverage that include drugs that they contended act not only as birth control but also act to effectively induce abortion because of the manner in which they worked. In those case, the Federal Government was taking the position that its public interest in ensuring access to birth control outweighed the claims under RFRA that employer’s religious liberty was being violated. Thanks in no small part to the broad manner in which the RFRA law was written, this argument by the Federal Government proved to be unconvincing to the Court’s majority and the Court ruled that RFRA did indeed bar the government from requiring certain privately held for-profit businesses from providing birth control coverage if doing so would violate their religious beliefs. As I said at the time, the outcome appeared to me to be a correct application of RFRA to the facts of that case, even though there was a strong argument that RFRA laws themselves are unconstitutional.

In any case, in these cases the Court is dealing with religious institutions that run non-profit institutions such as nursing homes in which they employ outside employees and, to the extent required by the PPACA, provide health insurance coverage to those employees. Given the fact that purely religious institutions such as churches are already exempt from the mandate and other PPACA provisions, the Federal Government decided to provide exemptions for these quasi-religious institutions that would remove the burden of paying for contraceptive coverage from the employer and shift it to the the insurance company. The only thing that the religious institution is employer is required to do in cases such as this is fill out a form attesting to the fact that they are claiming a religious exemption from the mandate and the Federal Government will then work with the insurance company to provide the contraceptive coverage directly to the employer. The Plaintiff’s in these cases claim, though, that even the act of filling out a form is somehow a violation of their religious liberty because it somehow makes them complicit in sinful activity. As I said when the Court first accepted the appeals in these cases, this is an argument that has never made any real sense to me. Even if you accept the argument that providing coverage for contraceptives is a violation of the religious beliefs of these institutions, it’s hard to see how filling out a form is also a violation of those beliefs or that it rises to the level of the kind of protection that RFRA laws were designed for. Instead, it seems clear to me that filling out the form and having the cost of the coverage picked up by the insurance company is exactly the kind of reasonable accommodation that that RFRA was designed to encourage.

Even before yesterday’s argument, it was apparent that this case would be one of the many that the Court had yet to hear in which Justice Scalia’s absence would have an impact. If Justice Kennedy’s questions are any indication, it would appear that he does not view the form as a sufficient accommodation of the Plaintiff’s religious beliefs and that he has been persuaded by the argument the Plaintiff’s made in their briefs that the government’s accommodation effectively involves a “hijacking” of the Plaintiff’s insurance plans, and argument that doesn’t really make any sense at all to me. Assuming that these questions were a real indication of Justice Kennedy’s views of the case, then we are guaranteed a 4-4 tie which, at least in these cases would mean that the Plaintiff’s lose and they would either be required to fill out the form or provide coverage for contraceptives. As noted above, though, this outcome would have no impact outside the four cases involved and the Circuits in which they were decided by the respective Courts of Appeal. There are other cases out there dealing with this same issue that would continue to move forward, including one in which the Eighth Circuit Court of Appeals ruled in favor of the Plaintiffs, and all of these would be unaffected by the outcome in the Supreme Court. The Justices are no doubt aware of this fact, but there’s little that they can do about it. One option would be to punt these cases for re-argument at the next term, perhaps along with whatever related cases might reach the Court between now and then, in the hope that the vacancy in the Court’s number will be filled by then. With the Senate refusing to act on any nomination until after the next President is inaugurated, though, it could be a year or more before a new Justice joins the ranks of the Court. Given that, it’s entirely unclear what the Justices will do with a high profile case like this, but it’s clear that this is an issue they’ll have to deal with again in the future no matter what they decide to do.

Here’s the transcript of yesterday’s argument:

Zubik v. Burwell by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. gVOR08 says:

    Justice Samuel A. Alito Jr. …said the government’s approach represented “an unprecedented threat to religious liberty in this country.”

    Overblown much?

    I had to register for the draft during Vietnam, a war that was obviously stupid and counterproductive. I had to pay taxes to support that and every stupid, counterproductive war we’ve started since. That tends to limit my sympathy for these poor, delicate flowers that can’t endure signing a piece of paper that obligates them to do exactly nothing.

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  2. Rafer Janders says:

    Oh, if only there were some way to break a 4-4 tie on the Supreme Court!

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  3. KM says:

    The Plaintiff’s in these cases claim, though, that even the act of filling out a form is somehow a violation of their religious liberty because it somehow makes them complicit in sinful activity.

    I don’t get this either, Doug. How in the world can a judge possibly accommodate the worldview that registering an objection is tantamount to participating in the sin the objection denounces? Let’s take a recent government action: If I protest ISIS’s actions and sign a petition to request their actions against Christians be labeled as genocide, does that make me a party to genocide too? How absurd!

    To be utterly fair, though, let’s compromise and make *everyone* file for this exemption if it’s of a religious nature – taking away the blanket exemption for houses of worship would make the “undue burden” aspect vanish in a rather karmic way. After all, if it is a firmly-held belief, one should be proud to stand up to the Man for it and tell them Hells No! You’d think they’d be happy to have it on record they object for God and all to see.

    The written transcript of the hearing showed that “hijack” and “hijacking” were heard a total of seven times.

    Of course it was. Buzz words only work if repeated at high volume and quantity. Hijack has a violent tone to it so they are going to want to put it in your ears often that the nasty paperwork is hurting them. They want the same blanket coverage as houses of worship or small business, then go be legally classified as one. Hint: there’s a reason you are already not and you’ll figure out why if you think for a minute. Talk about trying to hijack something…..

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  4. C. Clavin says:

    The only division is between Justices who grasp reality, and the Republican Justices.
    Like the late Scalia before them, Alito and Roberts seem to have zero idea how the world around them works.
    Insurance works because some people use it more than others…and the people who use it less subsidize those who use it more. The idea that women could sign up for contraceptive coverage only is flat out stupid…because they would all be using it…otherwise why sign up? That’s just not how insurance works.
    Has the Republican party slipped so far that even elite Justices are brain-dead?

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  5. C. Clavin says:

    I think Cruz has pretty much cleared up the Republican view of religious freedom…police the Muslim neighborhoods.
    The idea that Republicans believe in religious freedom is just so much bull$hit.

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  6. grumpy realist says:

    @Rafer Janders: flip a coin?

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  7. Tillman says:

    @KM:

    How in the world can a judge possibly accommodate the worldview that registering an objection is tantamount to participating in the sin the objection denounces? Let’s take a recent government action: If I protest ISIS’s actions and sign a petition to request their actions against Christians be labeled as genocide, does that make me a party to genocide too? How absurd!

    This. The whole thing beggars belief. The act of filling out paperwork to wash your hands of our government’s sinful activities is itself a sin? That’s the world tiniest moral tragedy right there.

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  8. JKB says:

    for these quasi-religious institutions that would remove the burden of paying for contraceptive coverage from the employer and shift it to the the insurance company.

    I love this is all based on a willful ignorance of reality but he Federal government, the justices, etc. Ooh, they are going to shift the burden to the insurance company. Of course, the money to pay for this burden is going appear from on the money tree. It sure won’t come from charging higher premiums for other services to the religious organizations or maybe across the whole of the policy holders, because that would be…reality.

    In any case, this all goes away next year when President Trump does away with this rule created by agency fiat without any basis in the legislation that such coverage be provided or not. Then those providing will probably continue as a perk and signal of their Progressive principles and those who have religious objections can stop.

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  9. Monala says:

    @JKB: You do realize that birth control is far, far less expensive than pregnancy and childbirth? A healthy childbirth with no complications can cost as much as $10,000.

    At the risk of offering TMI, I had my daughter at almost 39. It was a very difficult, complicated pregnancy that I am sure cost quite a bit more than $10,000. (Fortunately, I had good insurance. Love ya, Massachusetts!). Nevertheless, many months of pregnancy bed rest followed my 8 weeks unpaid maternity leave cost us a considerable amount financially. My husband and I were flat broke following her birth, and determined never to have another child. So when my doctor suggested an IUD ($800 a pop) because of both my desire not to get pregnant again and my age, I readily accepted. Again, my good insurance paid for it, since there is no way we could have come up with $800.

    My family would be far worse off, and far more of a cost to our insurance company, the company I worked for, and society at large had I gotten pregnant again. Birth control savesmoney. Even a woman on the monthly pill (average $40 a month without insurance) saves an insurance company a bundle. That’s $480 a year, or $4800 over 10 years. Again, compare $10,000 (at best) for a healthy baby whose gestation and birth takes less than a year.

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  10. An Interested Party says:

    In any case, this all goes away next year when President Trump does away with this rule created by agency fiat without any basis in the legislation that such coverage be provided or not.

    I understand why you believe in fantasies…it’s how you cope with the reality of what will happen in November…

    You do realize that birth control is far, far less expensive than pregnancy and childbirth?

    Of course to these kind of people that isn’t the point…the point is that birth control itself is SINFUL! SINFUL! SINFUL! How sad…

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  11. bill says:

    @C. Clavin: really the same justice roberts that enabled obamacare twice?
    but seriously, contraception is not a health issue- it’s an optional endeavor that should be treated with respect and paid for accordingly. and i’ll even save you the pre-programmed response;
    viagra and all the other “shy weinus” drugs should never have been covered (albeit forcibly) by insurance either. if you can’t get wood naturally, then you suck and shouldn’t be even trying anymore.
    i thought planned parenthood doled out free stuff anyways, what with all the cash they get from the gov’t. and ob/gyns! ?

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  12. wr says:

    @Monala: Or you could just stop being a slut, and then you wouldn’t be costing all us real Americans anything.

    Sorry, I was trying to see what it would be like to think like a Republican. It hurts.

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  13. al-Ameda says:

    The answer did not seem to satisfy Justice Kennedy. “That’s why it’s necessary to hijack the plans,” he said caustically.

    Yes, there’s your swing vote, right there.

    Does anyone believe that if we moved to a single-payer system (yes, a fantasy, I know) that there wouldn’t be numerous law suits filed by hyper-moralists, objecting to their tax dollars being spent to provide insurance coverage that encourages immoral behavior (as you know, birth control encourages people to have more sex without the morally preferred purpose of having children)?

    We consistently prove that we are the dumbest advanced nation in the world.

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  14. Gustopher says:

    If I understand the argument of the plaintiffs, they object to filing the paperwork, because once the paperwork has been filed, it will be used to gather the data of where there are health care gaps, which triggers blah blah blah and a whole lot of sin to fill the gaps. So, filing the paperwork directly leads to the sin. (The employee does get birth control in the end, right? That’s the objection)

    What if the triggering action were not that particular piece of paper? Move it onto the insurance companies, with a backup of any affected employee being able to fill out a web form or call a hotline.

    At that point, the process continues with the gaps in insurance being filled in. And an extra step to ensure the objecting institution has filled out their paperwork, and fine them heavily if they haven’t because they are just being annoying at that point.

    (Or just set the plaintiffs on fire, and send their children off to reeducation camps. I’d be happy with that outcome too)

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  15. ddennis says:

    I have had my fill of religion and the religious. I experience the same disgust with these Christians that I felt toward al-Zarkawi when he was cutting off heads in Iraq. The highest virtue they could exhibit would be to mind their own business, instead of everyone else’s.

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  16. Grumpy Realist says:

    Anyone see where Mike Pence just signed an anti-abortion law in Indiana forbidding abortion for reasons of sex or disability?

    Gee, wonder how much money Indiana will make available to families for the lifetime health support of disabled babies? Or for babies with Tay-Sachs, who spend their entire pain-filled lives in the NICU? Or for lifetime support and training for kids suffering Downs Syndrome?

    Wanna bet it will be somewhere between slim and none? And what does exist will be immediately chopped off whenever they can’t balance their books?

    I do hope that any woman who is forced to give birth under these circumstances tells the hospital to send the damn bill to Mike Pence.

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  17. An Interested Party says:

    Anyone see where Mike Pence just signed an anti-abortion law in Indiana forbidding abortion for reasons of sex or disability?

    How is that even enforceable? How is the government going to prove the real reason a woman wants an abortion? I understand that another provision of this bill forces women who get abortions to pay for the cremation of the fetus…how humane…

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  18. rachel says:

    @bill:

    …contraception is not a health issue…

    Yeah, it’s not like women ever get sick…
    Pregnancy symptoms and complications can range from mild and annoying discomforts to severe, sometimes life-threatening, illnesses.

    …or even die…

    Sadly, over 600 women die each year in the United States as a result of pregnancy or delivery complications.

    … when a pregnancy goes wrong, or that hormonal contraceptives are also used treat painful health conditions like polycystic ovary syndrome or endometriosis. OK, it’s not a health issue for bill.

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  19. JKB says:

    @Monala:

    You seem confused. I simply pointed out the stupidity of the government’s position that the cost would be shifted from those who have a religious objection to the insurance company.

    I also pointed out that the whole matter was an arbitrary choice by the current administration and could be changed by a new administration.

    As for birth control, it is a good idea. The issue here is imposing the burden of supplying birth control, some means seen as abortion on those who have religious beliefs that birth control/abortion is a violation of the tenets of their religion. And there is a good measure of those wanting to use government violence to impose their view upon others especially if it forces them to compromise their religious beliefs.

    As was pointed out in the discussions of the Hobby Lobby case, should government provision of taxpayer funded birth control be found to be in the government’s interest, then the government’s least intrusive upon religious beliefs manner of providing said birth control is to provide it directly, independent of private insurance. Every woman simply obtains an approved method of birth control and the pharmacy files a claim with the government rather than the insurance provided as an employment benefit.

    But as to the birth control cheaper than birth argument, that is purely a political matter. It is also cheaper to execute convicted murderers after full but expedited appeals and review, but many states opt instead for the more costly life in prison due to to politics. On the other hand, under Obamacare, you and your husband are paying for insurance to cover pregnancy so statistically the cost to the insurance or employer is already statistically covered. Even more so since your husband has no physical way to become pregnant and thus file a claim against the insurance.

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  20. Grewgills says:

    @JKB:

    It sure won’t come from charging higher premiums for other services to the religious organizations or maybe across the whole of the policy holders, because that would be…reality.

    The reality is that that vast majority of it gets shifted to the government and the rest will be a cost of doing business for the insurance companies and will shake out across all of that companies insurees. Where in that is a religious burden?

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  21. Monala says:

    @JKB: shifting to the pharmacy won’t solve the issue, since there are pharmacists out there who object to birth control too.

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  22. Jen says:

    but seriously, contraception is not a health issue- it’s an optional endeavor

    Birth-control pills are used to treat a wide range of medical/health issues. In addition to the already-mentioned polycystic ovarian syndrome and endometriosis, hormonal BC can also be used to regulate periods or treat chronic migraine. It is indeed a health issue.

    It is also cheaper to execute convicted murderers after full but expedited appeals and review, but many states opt instead for the more costly life in prison due to to politics.

    Somewhat off topic, but since it was used as a comparison, you might want to check this. I don’t have the time to look for it right now, but I’m fairly certain that due to legal fees involved, this is flat-out wrong: it is cheaper to keep a prisoner in for life than go through all of the legal hoops to get to an execution. In fact, the reduced cost has been cited as one of the reasons that state executions are dramatically down. It saves money to keep them locked up for life.

    Insurers would *much* rather pay for birth control than a birth, especially considering the number of c-sections performed, which are even more costly than the $10K referred to above.

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  23. C. Clavin says:

    @JKB:
    @bill:
    It’s pretty clear the two of you know as much about women and their health issues as the rest of the rich old white guy party…which is about zero.
    It would seem to me that if you want to make choices for women that you should at least have some knowledge of the topic.
    You don’t.
    Of course that also applies to everything else you opine on.

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  24. KM says:

    The burden on women would be minimal, Justice Alito said. “So she’ll have two insurance cards instead of one,” he said.

    If we are gendering insurance to avoid “moral complications”, then men’s health will have to be separated out as well to be fair and equal.

    Of course, since a lot of “women’s” health issues handled by birth-control are classified under a broad range of specialties (PCOS falls under Endocrinology, Ovarian Cancer under Oncology, etc), you can’t simply say “oh just the direct body parts women have count” otherwise you run the risk of prescription cross-contamination – a big no-no as we see. For men, this mean all the typical issues they suffer from like heart disease, prostate cancer, male pattern baldness, endocrine disorders, etc will all fall under the “men’s” category, not regular insurance. A great deal of disease propensity is tied to your biological sex and the associated biochemistry that comes with it so that should be a factor as well. In fact, using their logic, the only ones who would be under regular insurance would be children, the elderly and few other cases…. you know, those who take from the system instead of paying into to it.

    In other words, they want separate but “equal” till the whole damn thing collapses on itself . Tell me, why haven’t insurance companies put serious weight on their representatives to knock off these kinds of idiocy? Separate women’s insurance is surefire moneypit in terms of profit.

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  25. Tony W says:

    We waste so much time and treasure in deference to the supernatural….ughh.

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  26. Tony W says:

    @JKB:

    In any case, this all goes away next year when President Trump does away with this rule created by agency fiat

    Yes, we all can’t wait to see him replace Obamacare with “something terrific.

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  27. Scott says:

    Birth-control pills are used to treat a wide range of medical/health issues.

    I am curious how this works. Is the objection for BC pills limited for contraceptive purposes or will there be coverage allowed for non-contraceptive purposes. In our area (middle to upper middle class), not a few high school girls (including my daughter) are on the pill for the purpose of regulating hormones to minimize acne. Are the religious institutions against this also?

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  28. Guarneri says:

    @gVOR08:

    Kind of like paying taxes for Great Society programs, eh?

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  29. grumpy realist says:

    @bill: Bill, I take it that because you are a guy you haven’t looked into this. Contraception definitely is a health issue for women. It’s been shown that the Pill helps protect against ovarian cancer, to the point that there’s been discussion that women should be taking low-dosage versions of the Pill just like older people are told to take baby aspirin, whether they are sexually active or not.

    The Pill is also used to help women with painful periods, certain forms of brain cancer, and other gynecological disorders.

    Maybe before you dismiss “birth control” as “optional” you should look into what it actually does, hmmm? So as not to look like a sanctimonious ass?

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  30. Jen says:

    @Scott: That’s a really big, and good, question.

    I know about pills being used to treat chronic migraine because I was on them for more than a decade for that purpose. I was getting horrid, debilitating migraines that sometimes caused me to miss work, and the migraine treatments available at the time (this was before the new class of meds like Imitrex hit the market) didn’t work at all.

    My doctor, looking at my history (migraines started at 13), decided hormonal regulation might work. Here’s the other interesting fact–it took some trial and error of different formulations before we hit on one that worked well. I’ve seen time and again people railing about this mandate say that there are generics that can be had for $4 or whatever, but that doesn’t cover the fact that different formulations may or may not work for the patient.

    This is where it comes down to it not being anyone’s d@mn business what medications I take–if an institution is going to offer insurance to its employees, and BC is a medication, it should be covered and that should be the end of it. I have no idea how they’d parse this out, but given my personal experience, I have very strong opinions on this issue.

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  31. Rafer Janders says:

    @grumpy realist:

    Bill, I take it that because you are a guy you haven’t looked into this.

    No, it’s because he’s an idiot.

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  32. stonetools says:

    The response of the Justices and the conservative commenters here proves once again that conservatives just don’t understand how women’s stuff works. They don’t know and frankly, just don’t want to know, because the reality conflicts with their ideology.

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  33. grumpy realist says:

    @Rafer Janders: Well, there’s that, too, but I was being charitable that it was because he hadn’t run into the situation rather than being totally a dumbwit.

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  34. Rafer Janders says:

    @grumpy realist:

    Well, there’s that, too, but I was being charitable that it was because he hadn’t run into the situation rather than being totally a dumbwit.

    He hadn’t run into the situation of women? Now, I’m only a humble manly man, but even I had, by the time of junior high school, become aware of, um, lady business.

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  35. Neil Hudelson says:

    @Grumpy Realist:

    Unfortunately I am all too aware.

    Your description doesn’t go far enough in showing how horrific this bill is:

    1. Women can’t seek abortions if the perceived reason is for sex, race, or disability.
    2. If the abortion is sought after the woman is informed of the race, sex, or disability, it is assumed that that is her reason for the abortion.
    3. This means that a woman whose fetus has contracted the Zika virus would have to carry the fetus to term, and care for the disabled, unwanted baby. A healthy woman with a healthy fetus could, of course, still seek an abortion.
    4. The punishment for seeking an abortion for a perceived reason of race, sex, or disability, falls on the doctor. Doctors who perform abortions will be criminally liable if the woman is later accused to have sought her abortion for these reasons.
    5. The remains from any abortion can no longer be treated as medical/pathological waste. Even an abortion performed at 2 weeks, when the fetus is a microscopic lump of cells, must be given a burial or cremation, performed by a licensed burial home.
    6. Abortion providers must swallow the funerary costs, or seek mortician licensures themselves, unless the woman/family specifically requests that the remains be turned over to them. At which point they have to pay for funerary costs.
    7. It is murky, but the above disposal requirements may apply to miscarriages as well. For my sister in law who just had an early term miscarriage, this would mean that if she had had the miscarriage this week, she would have had to fish the remains out of the toilet and turn them over to a funeral home for cremation or burial, or she would’ve been breaking the law.
    8. It has not been reported, but the state GOP’s own “expert testimony” when this bill was being debated, testified that the bill was patently unconstitutional, and that the GOP would be wise to rewrite it or vote it down. They passed it anyway. Most GOP women voted against it.

    Ah, well, we (the ACLU of Indiana) will sue, we will win almost automatically, and Indiana taxpayers will foot our bill. The only question is how big that bill will be–the more the state contests it, the more the taxpayers fund us.

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  36. stonetools says:

    I think it’s likely that this decision ends up 4-4, which means that the government’s position will prevail everywhere but in the 8th Circuit, where women will continue to get screwed over until a new test case goes up to SCOTUS. By then FSM willing, a liberal majority will be in place, where hopefully they will go all way and reverse Hobby Lobby, thus sweeping all this nonsense into the dustbin of history,and people will forget that having an employer provide contraceptive coverage as part of their health insurance package was even controversial.

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  37. DrDaveT says:

    Justice Anthony M. Kennedy, who repeatedly questioned whether the accommodation was making the groups “complicit in the moral wrong” by hijacking their insurance plans.

    What moral wrong?

    For this argument to have any weight at all, you have to believe that:
    1. There is a moral wrong inherent in contraception
    2. This moral wrong supersedes the actual law of the land AND will of the people

    That’s not an impossible bar (see: slavery), but any decision along those lines would have to make it clear that the basis for the decision is the intolerable moral wrong.

    Except, of course, that only the cultists believe in that particular moral wrong, which has neither legislative nor popular support. Explain to me again how it’s the liberal justices who are ‘activist’, seeking to legislate from the bench without mandate?

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  38. Barry says:

    @gVOR08: “I had to register for the draft during Vietnam, a war that was obviously stupid and counterproductive. I had to pay taxes to support that and every stupid, counterproductive war we’ve started since. That tends to limit my sympathy for these poor, delicate flowers that can’t endure signing a piece of paper that obligates them to do exactly nothing.”

    And if you had refused to register, or demanded CO status without filling out forms, then the government would have jailed you.

    And I’ll lay $20 to a charity that Kennedy doesn’t take the same soft view when the religious beliefs are those with which he doesn’t have sympathy.

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