Robert F. Jakubowicz: Court punts away a critical ACA decision


PITTSFIELD >> There is more involved in the Supreme Court case of Zubik v. Burnwell than the outcry about Obamacare forcing faith-based religious groups to provide or pay for birth control for their employees in nursing homes, hospitals and schools. This case is a new twist in an old cultural battle.

In the Zubik case, religious groups objected to federal regulations under Obama's Affordable Care Act (ACA) that require them to provide contraceptive coverage for their employees under their health care insurance plans. These groups could opt out of this requirement by filing a two-page notice to the insurance company or to the federal government that they object to it on religious grounds.

The filing of this notice makes coverage a matter entirely between the employee and the insurance company. The insurers are required to provide such coverage free of charge to employees who want it and the government reimburses the insurance company for its cost. This is a fair and reasonable compromise that removes the religious groups from providing and paying for contraceptive coverage.

But the groups, especially the Little Sisters of the poor, say that such a compromise "hijacks" their insurance plans to cover birth control. They claim that the mere act of filing the notice for an exemption makes them complicit in the providing of birth control coverage.

Birth control is an important factor relating to women's health. Allowing organizations responsible for health care plans to opt out of providing such coverage by merely filing a simple form does seem to be the least restrictive way to do it.

Douglas Laycock, a law professor at the University of Virginia Law School and a staunch defender of religious liberty who backed the petitioners in the Hobby Lobby case, filed a brief in support of the government in the Zubik case. He also wrote a Washington Post column critical of the claim by the religious groups, opining that "according to the logic of their lawsuit, no form of accommodation could satisfy" them.

Why? Because they do not want to play any role, no matter how minor, like filing a notice, in facilitating access to contraceptives. In other words, they are trying to use their religious beliefs to dictate what the insurance companies they hire can cover, despite the regulations under the ACA.

These groups have prevailed in only one of a number of lower federal courts. That is reason enough for the Supreme Court to have resolved the dispute. Otherwise we would have the situation the court was designed to prevent— different lower court rulings in different states on the same issue.

But the court punted. The justices implied that the parties appear to be close to a compromise and sent all the cases back to the lower courts to allow them to try again to reach an agreement.

We can only speculate that the real consideration by the justices was to avoid another 4-to-4 decision which would have left the differing lower court decisions in place.

Unless the administration gives in on mandated contraceptive coverage under the ACA, or the Little Sisters give in to being a party in indirectly facilitating birth control, the resolution of this case by a return to Supreme Court conceivably will not take place until next year. By then there will be a new president and her or his appointee will be the ninth justice.

Robert "Frank" Jakubowicz is a regular contributor to the Berkshire Eagle.


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