A Supreme Court Hijacking by Linda Greenhouse
'There was lots of talk about hijacking the other day at the Supreme Court — not in a criminal case, but in the argument on how far the government must go to shield nonprofit religious organizations from the Affordable Care Act’s requirement to include birth control in employer health care plans.
If the government has its way, it will “hijack our health plans and provide the coverage against our will,” Paul D. Clement, arguing for one group of religious nonprofits, warned the eight justices. His co-counsel, Noel Francisco, representing a second group of religious plaintiffs, added: “They’re seizing control of our plans, the plans that we are required to provide under threat of penalty.”
Sympathetic justices were quick to pile on. “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 John G. Roberts Jr. lectured Solicitor General Donald B. Verrilli Jr.
The solicitor general had the facts on his side on how the opt-out that the Obama administration is offering would actually work: Religious nonprofits could completely divorce themselves from covering birth control after notifying the government of their religion-based objection. But the conservative justices never stopped their rhetorical assault long enough to listen. When Mr. Verrilli tried to explain why it’s necessary to include contraception coverage in employer health plans, rather than in a nonexistent, stand-alone birth-control policy that women would have to shop for separately, Justice Anthony M. Kennedy interrupted him with “that’s why it’s necessary to hijack the plans!”
Remember back four years ago to the first Affordable Care Act case, when “broccoli” dominated right-wing talk radio — as in “if the government can force you to buy health insurance, it can force you to eat broccoli” — and was adopted by the conservative justices? Hijacking, evidently, is this year’s broccoli.
There is in fact no hijacking going on — not of anyone’s insurance plan, anyway. As the government’s brief and Mr. Verrilli’s argument made perfectly clear, once the organization notifies the government of its religious objection to covering birth control, the coverage obligation passes to the organization’s insurance company without any cost to or further involvement by the employer. “Employers are not to bear any financial burden for the contraceptive coverage,” the solicitor general told the court.
But the religious nonprofits nonetheless insist that even the requirement to notify the government makes them complicit in making birth control available to their employees. What these organizations — colleges, charities and nursing homes that employ and serve people of all faiths — want is the complete exemption that the government has made available to actual churches.
“Is there any accommodation that would be acceptable?” Justice Elena Kagan asked Mr. Francisco. “Is there any kind of notification that would be acceptable” if the result was that female employees would get contraception coverage “seamlessly through an employer-based plan?”
The lawyer’s answer, taking up several pages of the argument transcript, was far from direct, but his bottom line was no. . .
It took Justice Sonia Sotomayor, the only woman among the five Catholics on the court and the only one among them who doesn’t regularly attend Mass, to bring this case down to earth, slyly suggesting that the plaintiffs didn’t trust their female employees to refrain from using birth control. “Why don’t we assume that if the majority are part of the religion, that they are not going to buy contraceptives?” she asked Mr. Francisco. “That’s their religious tenet. And so, why are we worried about this case at all?” And she answered her own question: “We are worried because there are some women who don’t adhere to that particular religious tenet, and who have — we perceive the government has determined — a real need for contraceptives.”'>>>
http://www.nytimes.com/2016/03/31/opinion/a-supreme-court-hijacking.html?
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