Althouse: About those RFRA and birth control cases, "The Court expresses no view on the merits..."

May 16, 2016

About those RFRA and birth control cases, "The Court expresses no view on the merits..."

"In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest. Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans 'obtain, without cost, the full range of FDA approved contraceptives.'... The judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion."

Just now, per curiam, in Zubik v. Burwell, the case about the religious burden of needing to fill out a form to object to the requirement to provide contraceptive coverage. This fizzle of an outcome happened, according to the Court, because the question came up at oral argument whether the government needed the form.

20 comments:

Mark said...: If the purpose of the mandate was to provide contraceptive coverage, then NO, the form was unnecessary.

If the purpose of the mandate was to involve religious employers in a scheme that is offensive to their faith, then and only then was the form necessary.; 5/16/16, 10:51 AM
buwaya said...: So the government pretty much gets its way and can fine any who don't comply?
Then we lost.; 5/16/16, 11:09 AM
Ignorance is Bliss said...: I don't see how getting rid of the form changes things. If you still require employers to provide coverage, and that coverage must include things that the employer feels would violate their religion to provide, then not requiring the signing of a form does not relive the burden, it just moves the burden upstream to the original provision of insurance coverage.

Signing the form was always a red herring.

We are far past the point of the court questioning if this is a compelling government interest ( apparently everything is a compelling government interest ) and the Hobby Lobby precedent settled that this is a burden on religious freedom ( which would now be a 4-4 split, but they don't want a 4-4 split ignoring a recent precedent just because a Justice passed away ). And no question that there is a less burdensome means, since churches were given a complete waiver on the mandate.

The court is kicking this down the road until the liberals get another vote to reverse the Hobby Lobby precedent.; 5/16/16, 11:12 AM
damikesc said...: The court is kicking this down the road until the liberals get another vote to reverse the Hobby Lobby precedent.

Which makes their whining about evil conservatives constantly trying to undo SCOTUS decisions laughable.

They only support stare decisis when Republicans do --- when it supports their opinions.; 5/16/16, 11:22 AM
David Begley said...: Should do that for every case.; 5/16/16, 11:31 AM
rhhardin said...: SCOTUS screwed up the civil rights act, and common sense retreated into religious arguments where it should have stayed with freedom of association arguments.

SCOTUS is avoiding the consequences of its stupidity by sending it all away.; 5/16/16, 11:55 AM
Ann Althouse said...: "I don't see how getting rid of the form changes things. If you still require employers to provide coverage..."

But they don't. That's the point.; 5/16/16, 12:00 PM
Ignorance is Bliss said...: Ann Althouse said...

But they don't. That's the point.

But they do. Little Sisters may go to their insurance company and request a policy that does not cover contraceptives ( or certain categories of them. ) The insurance company may sell them a policy which, on its face, does not cover contraceptives. Then the government comes along an requires the insurance company to cover those contraceptives anyway, at no additional cost to anyone. The insurance company knew this at the time they priced the policy, and included that cost as part of the price of doing business. The Little Sisters know this at the time they make the decision to purchase the insurance. They have no option to meet the mandate and not provide insurance that covers the contraceptives.; 5/16/16, 12:18 PM
Birches said...: The Beckett Fund lawyers seem pleased with the decision.; 5/16/16, 12:25 PM
Gabriel said...: @Ignorance is Bliss:at no additional cost to anyone. The insurance company knew this at the time they priced the policy, and included that cost as part of the price of doing business.

Whenever you buy something, and something else is included "free of charge", you have ALREADY paid for that thing.

Funny how this simple concept eludes so many.; 5/16/16, 12:28 PM
Michael K said...: " They have no option to meet the mandate and not provide insurance that covers the contraceptives."

The LA Times is bragging about this.; 5/16/16, 12:55 PM
Ignorance is Bliss said...: From Michael K's link:

The Catholic charities and the evangelical colleges that sued the government “have clarified that their religious exercise is not infringed where they need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception, even if their employees receive cost-free contraceptives from the same insurance company...

Well, I don't understand the charity's logic in saying that the new arrangement does not infringe, when the old arrangement did. But, it is their religious belief in question, and if they say it is not infringed then it is not infringed.; 5/16/16, 1:06 PM
Birkel said...: The Little Sisters should all become contractors.; 5/16/16, 1:14 PM
damikesc said...: "I don't see how getting rid of the form changes things. If you still require employers to provide coverage..."

But they don't. That's the point.

Not the way it was viewed during the uproar over banks buying entities that once were involved in the slave trade.; 5/16/16, 1:41 PM
damikesc said...: The only solution is nonstop culture war without end. Bloody the hell out of people forcing people to sacrifice their value because some moronic women seem unable to handle paying $9 a month for birth control.; 5/16/16, 1:42 PM
Matt said...: Not sure why Sotomayor chose to write a concurrence reiterating that the Court did not make a ruling on the merits.; 5/16/16, 2:10 PM
Wince said...: This Supreme Court decision was an abortion?; 5/16/16, 3:30 PM
Captain Drano said...: Prof. Althouse, but now they do! Look what New York just did without notice

From Albany Diocese last Friday, after they and other org's filed suit:

"Recently it has come to light that a New York State agency had, without any prior public notice, approved and issued mandates forcing church institutions, employers and individuals to cover so-called therapeutic and non-therapeutic abortions in their health insurance plans.

The health insurers that were required to include this abortion coverage had already been contracted -- some, with long-standing relationships -- by a number of dioceses and religious agencies throughout the state, both Catholic and non-Catholic, including our own Diocese. But neither the agency nor the insurers informed us or the general public of these mandates.

... the manner in which this came to be is also something that should be of profound concern to all.

...the New York State Department of Financial Services, which, on June 26, 2015, and again on April 26, 2016, approved and issued this abortion mandate in the form of "model language" requiring individual and small group employers offering health insurance benefits to include in their renewal contracts coverage of non-therapeutic and therapeutic abortions.

...this agency mandates abortion coverage by all employers in their health plans under the undefined service category of "medically necessary" surgery.

...Once I learned of the mandates, ...I proceeded to seek out the option of self-insurance.

There is no guarantee that, should such an option prove feasible, the mandates currently being dictated by one regulatory agency might not be coerced through some other state action.

What is objectionable in the mandates is not only that they force us to fund and participate ...but also that they were promulgated and enforced under color of law, without our knowledge and in clear violation of the law. ...

Wherever the rule of law can be employed in order to pursue the free exercise of one's religious freedom and liberty of conscience rights, free and fair society should encourage such due process. Those joining in the current challenge, which raises issues of great public importance, are exercising their legal and constitutional rights not to have them compromised or stripped away by any agency of the government exceeding its authority -- especially when these underground mandates are reached in such an unprecedented and unilateral manner, without any prior public or contractual notice, as in this case."

http://www.rcda.org/our_bishop_weekly_message_Current.html; 5/16/16, 6:55 PM
Scott said...: "Nothing to kill or die for
And no religion too
Imagine all the people
Living life in peace.."; 5/16/16, 11:59 PM
james conrad said...: The fact that The Little Sisters of the Poor are before the SCOTUS at all tells me all i need to know about the Obama admin.; 5/17/16, 4:29 AM