WASHINGTON – A difficult question behind the next legal dispute over religion, birth control and the health law is likely to be resolved by the Supreme Court.
The issue in more than four dozen lawsuits from faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral is how far the Obama administration must go to accommodate them.
Religious-oriented nonprofit groups already could opt out of covering the contraceptives. But the organizations say the accommodation provided by the administration does not go far enough because though they are not on the hook financially, they remain complicit in the provision of government-approved contraceptives to women covered by their plans.
The high court will be asked to take on the issue in its term that begins in October. A challenge from the University of Notre Dame in South Bend, Indiana, probably will be the first case to reach the court.
The Obama administration argues the accommodation creates a generous moral and financial buffer between religious objectors and funding birth control. The nonprofit groups just have to raise their hands and say that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs.
To do so, they must fill out a government document known as Form 700 that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The employer does not have to arrange the coverage or pay for it. Insurers get reimbursed by the government through credits against fees owed under other parts of the health law.
Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the requirement to offer birth control.
The objections by religious nonprofits are rooted in teachings against facilitating sin.
Roman Catholic bishops and other religious plaintiffs argue that filling out the government form that registers opposition to contraceptives, then sending the document to the insurer or third-party administrator, is akin to signing a permission slip to engage in evil.
In the Hobby Lobby case, the justices rejected the government argument that there was no violation of conscience because the link between birth-control coverage and the outcome the employer considers morally wrong was slight.
But the Supreme Court could draw a distinction between subsidizing birth control and signing a document to deputize a third-party to do so, said Robin Fretwell Wilson, a family-law specialist at the University of Illinois College of Law.
“Think about how thinned down that objection is,” she said. “The court might say that is a bridge too far.”
