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Contraceptive Coverage Form Designed To Accommodate Religious Employers Draws Objections

Contraceptive Coverage Form Designed To Accommodate Religious Employers Draws Objections

July 14, 2014 — The form that religiously affiliated not-for-profit organizations must complete to opt out of directly providing contraceptive coverage to their employees has "provoked a titanic clash between the government and many religious organizations" and become a "a tangible symbol of President Obama's struggle to balance religious freedom and women's rights," the New York Times reports (Pear, New York Times, 7/12).

Under the federal contraceptive rules, religiously affiliated not-for-profits that object to contraception are eligible for an accommodation that ensures they do not have to pay for or directly provide contraceptive coverage to their employees (Women's Health Policy Report, 6/30).

Employers wishing to receive the accommodation must complete a two-page form that asks for the name of the "objecting organization," as well as the name, title, address and phone number of a person who certifies that the organization objects to providing contraceptive coverage.

Several religiously affiliated organizations -- such as the Eternal Word Television Network and the Little Sisters of the Poor have launched legal challenges against the accommodation, arguing that signing the form essentially authorizes "their insurers or plan administrators to pay for contraceptives, including some that they believe may cause abortion."

For example, EWTN argued in its court filings that the "coerced execution of the form is the trigger for contraceptive coverage." The government in that case argued that EWTN's refusal to complete the form "would deprive hundreds of employees and their families of medical coverage."

According to the Times, the organizations have had differing success in their legal challenges. The Supreme Court recently granted a temporary injunction to Wheaton College while the litigation continues. However, a judge from the 7th U.S. Circuit Court of Appeals ruled for the government in a case involving the University of Notre Dame, which the court said was not substantially burdened by completing and submitting the form.

Meanwhile, the Obama administration maintains that insurers have an independent obligation to provide birth control coverage, separate from the disputed form, the Times reports (New York Times, 7/12).

New York Times Column: Hobby Lobby Decision Reflects Supreme Court's Religious Divide

Most analyses about the Supreme Court's decision allowing Hobby Lobby to refuse to provide contraceptive coverage have focused on how the justices aligned ideologically or by gender, but "it is at least as compelling to consider the Catholic-Jewish divide," New York Times columnist Samuel Freedman writes.

Freedman notes that five of the high court's six Catholic justices -- Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- "formed the majority that espoused a larger place for religious practice in public life," while "[a]ll three Jewish justices -- Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan -- joined by one Catholic, Sonia Sotomayor, dissented on behalf of a wider, firmer separation."

He asks, "Did nine individuals just coincidentally disagree based on their legal reasoning, or have American Catholics and American Jews arrived at different communal positions about where to properly draw the line between church and state?" Freedman argues that the "Jewish organizational sphere developed largely along secular lines," while "American Catholics advocated largely through overtly religious bodies" -- a difference that "helps one make historical sense" of the Hobby Lobby ruling (Freedman, New York Times, 7/11).

Washington Post Editorial: ENDA Should Be Revised in Wake of Hobby Lobby Ruling

Concerns that employers could use the Hobby Lobby ruling to seek exemptions from anti-discrimination rules "came into focus [last] week when several gay rights groups withdrew their support from the Employment Non-Discrimination Act (ENDA) [S 815], a bill that is supposed to offer workplace protections to gay, lesbian, bisexual and transgender Americans," a Washington Post editorial states.

Given that "more than half the states lack workplace protections for gay, lesbian and transgender Americans," the editorial urges the bill's supporters to "push to strengthen [ENDA's] language, removing any possibility that it would condone the sort of workplace discrimination it seeks to eliminate, and [to] continue to work for its passage" (Washington Post, 7/11).