The U.S. Supreme Court will eventually decide whether religious-based objections to contraception coverage under the Affordable Care Act are valid. Already the preliminary jousting has helped clarify the important issues, unfortunately without suggesting a remedy.
The justices will need the wisdom of Solomon. It is important that the Affordable Care Act cover contraception services, without which comprehensive health care insurance would be a farce for millions of women. It is also important that the religious tenets of churches be respected, within reason.
Last week, Supreme Court Justice Sonia Sotomayor, at the request of a nonprofit charity in Colorado run by the Little Sisters of the Poor in accordance with its Catholic principles, issued a preliminary injunction staying the contraception requirement hours before it was to take effect. This in turn led to a response filed by Solicitor General Donald B. Verrilli Jr.
Mr. Verilli argued that the Catholic organization need only self-certify that it is a nonprofit religious organization and therefore exempt from providing coverage for contraceptive services. But the Little Sisters contend that signing a piece of paper amounts to giving their employees a permission slip for abortion drugs and contraceptives, making them complicit in what they regard as sin.
Scores of religious organizations have sued over Obamacare on religious grounds, including the Diocese of Pittsburgh, which in November was granted its own injunction in federal court for Catholic Charities (the law exempts churches from the contraception requirements, but not affiliated charities).
These cases share similar reasoning. What is a routine piece of paper on the government side amounts to a coupon for sinfulness on the other. In our view, the government has the better of this argument.
What is objected to represents a compromise by the Obama administration after initial complaints. The new rules keep church leaders and clergy at arm’s length, but allow women who work for Catholic nonprofits — some of them not Catholic — to make their own choice on contraception at the expense of the insurer, not directly the church.
If the churches’ argument succeeds, all sorts of other broad religious exemptions may eventually be allowed to work their mischief. Puncturing the wall of separation between church and state is a perilous undertaking.
Rather than trust the Supreme Court to make a reasonable distinction, the Obama administration should make another stab at compromise — exempt all religious-based nonprofits and give the individuals who work for them their benefits without a piece of paper. Surely, the devil can be extracted from these details.