The Obama administration has been stymied by the Supreme Court’s action on this year’s contraception-mandate case, Zubik v. Burwell, in which the Little Sisters of the Poor are one of the plaintiffs.
The Court asked the parties – the plaintiffs and the federal government – to see if they couldn’t find a way to work this out themselves. The justices’ reasoning is that there doesn’t seem to be any valid need for the special form the Obama administration wants religious institutions to sign, proclaiming that they won’t be covering contraception with their employee health insurance policies.
As recounted at the first link, above, the Obama administration actually admitted that very point, in a brief to the Court. Professor Michael McConnell of Stanford Law School summarizes it here:
The Court’s proposal won’t work, the government says, because it needs “written notification” of petitioners’ religious objections [i.e., the special form, EBSA Form 700]. Why? Two reasons: (1) written notification eliminates the need for the government or the insurer to “verify the employer’s sincerity”; and (2) it provides documentation so that the religious employer is not punished “if the insurer fails to provide the required coverage.”
But the government later admits that when a religious employer tells its insurance company to exclude religiously objectionable drugs, it is communicating the same message as when it provides a “written notification.” So the government already has everything it needs.
My link above also has the links you need to bone up on what the EBSA Form 700 is, and the fact that a few Christian religious institutions are the only ones being required to sign it. Hobby Lobby, the commercial retailer that objected on religious grounds to the Obamacare mandate to provide abortifacient coverage, is not required to sign or submit a Form 700 to signify that it wouldn’t be providing such coverage. (Hobby Lobby won its case, and is not being required to cover abortifacients.)
The Zubik v. Burwell parties are in talks in the appellate U.S. District courts at this point, having been sent back to the negotiating table by the Supreme Court. An update from late last week by the National Constitution Center indicates that they have declined to go to an arbitration process, at least for now.
But the Obama administration has cut one of its signature Didoes instead, and put a notice in the Federal Register requesting public comments from “stakeholders” on the contraception-mandate issue. (Its basis for doing this is that the contraception mandate is a federal regulation.)
In other words, the administration is embarking on a new tactic to run this out as a bureaucratic process, now that the judicial process has become a dead end.
The National Constitution Center frames this charmingly as a kind of crowd-sourcing: “a nationwide plea for advice — technical, practical, legal and even religious — on ways to settle the bitter controversy over the Affordable Care Act’s birth-control mandate.”
But what it is, of course, is a tactic to drive in on a losing battle from a different vector, creating more noise and obfuscating the facts on the ground as they actually are – i.e., the administration has lost its bid in the Supreme Court and has already exposed itself as a fraud.
If you can’t convince them, confuse them. Or, in the popular saying attributed by many to W.C. Fields, “If you can’t dazzle ’em with brilliance, baffle ’em with bullsh**.”
We’ll have to hope that, no matter how many friendly responses the Obama administration gets to its Federal Register request, the judicial system will see through every baffle, misdirection, and obfuscation.
The point is clearly established already: there is simply no need for the EBSA Form 700, which is what the plaintiffs object to having to sign and submit. They object because the Obamacare regulation says precisely that the form itself triggers government health administrators to provide contraception-services coverage by another means. Signing that form, in the plaintiffs’ view, makes them complicit in an act they regard as sinful. (Again, see the links to older posts at my first link at the top.)
The Court saw no reason for this form to be needed, and the Obama administration admitted that it isn’t. Why is the administration still pushing on this?
You know why. Because this is about establishing the principle that the federal government can force the people to affirmatively violate their consciences.
The U.S. government has made all kinds of exceptions and accommodations to the people for various reasons, including conscientious objection to military service for certain religious groups, and exemption from participating in Social Security, Medicare, and – yes – the Obamacare individual-coverage mandate, for reasons of religious conscience. There is simply no valid reason why people in religious institutions must be forced to affirmatively violate their consciences, when a new law is made.
In the case of the contraception-mandate issue, it was never even a question whether the religious institutions would have to actually cover contraception services. Federal law has exempted them from having to do that since the 1970s (when the explosion of federal regulation, including health regulation, began seriously to raise the issue of religious liberty in relation to it).
The issue is whether the government can force the people in religious institutions to make affirmations that they know will lead to outcomes they believe are wrong. That’s what the EBSA Form 700 is.
The Obama administration is trying to force this because it wants to establish that it does have that very power. It wants to establish that government can make new law and then subjugate religious freedom to it — as a matter of principle, even when that isn’t necessary to effective administration of the law. That’s all this EBSA Form 700 is about. That’s all it was ever about.