This article was originally published on Huffpost Politics on March 21, 2016 by Louise Melling.
When Congress passed the Women’s Health Amendment as part of the Affordable Care Act in 2009, it was seeking to combat discrimination against women in the U.S. healthcare system. The amendment was a long overdue step to make sure that women are not left without insurance for such basic services as mammograms or contraception.
It seemed a step forward so basic that it should garner no controversy, but only commentary about how long we had waited. Instead, the very idea of guaranteeing insurance coverage for contraception sparked a storm of protest.
More than 90 lawsuits were filed challenging the requirement. In 2014, the Supreme Court addressed a claim arising in many of these cases — whether the basic requirement that insurance cover contraception violated the religious liberty of for-profit corporations that objected on religious grounds. In a case known as Hobby Lobby, named for the chain of arts and crafts stores that brought the case, a closely divided Supreme Court concluded that the rule did, in fact, violate the businesses’ religious liberty.
Much about that decision is remarkable, including that it didn’t put an end to the protest and the litigation. To the contrary, once again, the contraception benefit is before the Supreme Court on Wednesday. What’s at stake this time is every bit as critical as what was at stake in Hobby Lobby.
In the Hobby Lobby decision, the court reached its decision in significant part because it reasoned the government had another way to ensure women had insurance coverage for contraception. The court pointed to a process the government had in place for religiously affiliated nonprofit organizations that object to providing the benefit as required by law. Under this process, the employer lodges its objection with its insurance carrier or with the government, which then notifies the insurer. The insurer then provides the employees the coverage, both administering and paying for it.
The process, often referred to as the “accommodation,” now applies to Hobby Lobby and other closely held for-profit businesses, as well as to nonprofit religiously affiliated entities, like universities and hospitals, that object.
What’s in question in this case now before the court is this very process. The employers before the court argue that filling out the form violates their religious liberty. They argue that it requires them to facilitate their employees’ insurance coverage for contraception and thus makes them complicit in a sin. It’s an argument the court shouldn’t accept and one that exposes the employers’ real objection — their employees getting coverage for contraception.