Contraceptive Opt-Out Is Fought in Court

07/15/2014 10:17 AM

07/15/2014 10:18 AM

A two-page federal form has provoked a titanic clash between the government and many religious organizations.

The form allows some religious organizations to opt out of providing contraceptive coverage, which many insurers and group health plans are required to provide under the Affordable Care Act and related rules.

The opt-out sounds like a way to accommodate religious beliefs. But many religious employers - like Wheaton College and the Little Sisters of the Poor - are unwilling to sign the form. By signing it, they say, they would authorize their insurers or plan administrators to pay for contraceptives, including some that they believe may cause abortion.

Fights over the form are playing out in dozens of courtrooms around the country. In a separate case, the Supreme Court ruled on June 30 that family-owned, for-profit corporations like Hobby Lobby Stores were not required to provide insurance coverage of contraceptives to employees if the companies objected on religious grounds. The U.S. Senate planned to take up legislation this week to reverse that decision. Why has a little form generated so much litigation?

The document has become a tangible symbol of President Barack Obama’s struggle to balance religious freedom and women’s rights.

In his majority opinion in the Hobby Lobby case, Justice Samuel Alito said that use of the two-page opt-out form, intended for nonprofit organizations, was a possible model for profit-making businesses, as well.

However, the Eternal Word Television Network, founded by Mother Angelica, a cloistered nun, told the Supreme Court last month that the “coerced execution of the form is the trigger for contraceptive coverage.” Even if it did not provide contraceptive coverage, itself, the Catholic network said, it must coordinate with a third party that would pay or arrange for such coverage - or else it would face fines possibly exceeding $12 million a year.

By contrast, the Obama administration said that the network’s refusal to sign the form “would deprive hundreds of employees and their families of medical coverage.”

A federal appeals court granted a temporary injunction sought by the network, just as the Supreme Court granted a reprieve to Wheaton College, pending the outcome of litigation.

But in another case, filed by the University of Notre Dame, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, in Chicago, ruled for the government. He said the “self-certification” form did not impose a substantial burden on the exercise of religion.

The form asks for the name of the “objecting organization” and the name, title, address and phone number of the person certifying that it opposes providing contraceptive coverage.

“The form is two pages long - 737 words, most of it boring boilerplate,” Posner said. Signing and mailing it “could have taken no more than five minutes,” he added.

The Obama administration says that insurers have an independent legal obligation to provide contraceptive coverage, apart from the federal form.

Justice Sonia Sotomayor agreed. “The obligation to provide contraceptive services, like the obligation to serve in the armed forces, arises not from the filing of the form but from the underlying law and regulations,” she said in the Wheaton College case.

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