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November 10, 2015 Off

Supreme Court to Hear Second Contraception Mandate Challenge

Last week, the U.S. Supreme Court agreed to hear a sec­ond chal­lenge to the Afford­able Care Act’s (“ACA”) con­tra­cep­tion man­date.   This time, mul­ti­ple religiously-affiliated groups are claim­ing that the law’s min­i­mal require­ments for opt­ing out of the man­date vio­late their reli­gious free­dom rights.  Fol­low­ing its own recent prece­dent, the Court should reject these claims.

The ACA requires employer-provided health insur­ance to cover all FDA– approved pre­scrip­tion con­tra­cep­tion at no cost to employ­ees.  Houses of wor­ship and other sec­tar­ian insti­tu­tions are wholly exempted from this require­ment.  Religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or let­ter to the Depart­ment of Health and Human Ser­vices (“HHS”).  In that cir­cum­stance, the health insur­ance com­pany or a third-party admin­is­tra­tor pays for and admin­is­ters the coverage.

 

Supreme CourtDespite this nom­i­nal require­ment, a num­ber of religiously-affiliated groups filed law­suits claim­ing that this reli­gious accom­mo­da­tion pro­vi­sion “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”) because it makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age.   Last week, the U.S. Supreme Court agreed to hear seven of these cases in one con­sol­i­dated appeal.

Seven of eight U.S. Courts Appeals (lower fed­eral courts) have already rejected such claims, includ­ing the influ­en­tial D.C. Cir­cuit.  It found that the fil­ing of the form or let­ter excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  The Court fur­ther deter­mined that the ACA  — not the opt-out notice – oblig­ates health insur­ance com­pa­nies or HHS through third-party admin­is­tra­tors to pro­vide con­tra­cep­tion cov­er­age.  As a result, it cor­rectly con­cluded that:

Reli­gious objec­tors do not suf­fer sub­stan­tial bur­dens under RFRA where the only harm to them is that they sin­cerely feel aggrieved by their inabil­ity to pre­vent what other peo­ple do to ful­fill reg­u­la­tory objec­tives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of know­ing that third par­ties are legally priv­i­leged or oblig­ated to act in ways their reli­gion abhors.

Although these seven deci­sions should per­suade the U.S. Supreme Court, they are not bind­ing.  But lan­guage in the Court’s own highly prob­lem­atic June 2015 Hobby Lobby deci­sion should dic­tate the out­come this time.  In Hobby Lobby, the Court reached the trou­bling con­clu­sion that for the pur­poses of RFRA it could not dis­tin­guish between a for-profit close cor­po­ra­tion ver­sus a religiously-affiliated group hav­ing a reli­gious objec­tion to the con­tra­cep­tion man­date.  As a result, it ruled that like non-profit religiously-affiliated groups, such close cor­po­ra­tions could opt out of pro­vid­ing con­tra­cep­tion cov­er­age under the man­date.  The Court, how­ever, effec­tively ruled that the opt-out pro­vi­sion was per­mis­si­ble under RFRA, stat­ing that it “… con­sti­tutes an alter­na­tive that achieves all the Government’s aims while pro­vid­ing greater respect for reli­gious liberty.”

Although ADL and oth­ers strongly dis­agreed with the Court apply­ing RFRA to for-profit cor­po­ra­tions by equat­ing them with non-profits, con­sis­tency would dic­tate that it reject religiously-affiliated groups’ chal­lenges to the opt-out pro­vi­sion.  To do oth­er­wise would be con­tra­dic­tory and mean that any bur­den on reli­gion — no mat­ter how triv­ial — could be used by religiously-affiliated groups as a vehi­cle to opt out of fed­eral law or impose their reli­gious beliefs on others.

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August 26, 2015 Off

Holocaust Analogies Continue To Taint Discourse On Wide Range Of Issues

The charged polit­i­cal debates over issues rang­ing from Iran to abor­tion con­tinue to be tainted by inap­pro­pri­ate invo­ca­tions of Hitler, Nazis, and gen­eral Holo­caust imagery.huckabee-israel-holocaust-oven-tweet-twitter

These mis­placed and offen­sive com­par­isons, made by politi­cians, pun­dits, and oth­er pub­lic fig­ures,  triv­i­al­ize this unique tragedy in human his­tory.  They not only rely on his­tor­i­cally incor­rect premises and exag­ger­a­tions, but also deflect atten­tion away from impor­tant national discussions.

For exam­ple, U.S. Sen­a­tor and Repub­li­can pres­i­den­tial can­di­date Ted Cruz recently sent let­ters to pas­tors through­out the U.S. to encour­age them to speak out against Planned Par­ent­hood, claim­ing that abor­tion rep­re­sents an “ongo­ing holo­caust.” Of course, invok­ing the Holo­caust in the dis­cus­sions on abor­tion is noth­ing new.

The Iran deal is also an area where offen­sive Holo­caust analo­gies have been increas­ingly crop­ping up. On July 26, for exam­ple, Repub­li­can pres­i­den­tial can­di­date Mike Huck­abee stated in an inter­view that Pres­i­dent Obama’s poli­cies on Iran will “take the Israelis and march them to the door of the oven.” Huckabee’s cam­paign also high­lighted this inap­pro­pri­ate com­par­i­son in a graphic on Twitter.

The analo­gies are not only used by politi­cians.  In a sign of how our pub­lic dis­course has coars­ened, crit­ics of pub­lic offi­cials also invoke Nazi analo­gies.  When New York Con­gress­man Jer­rold Nadler pub­licly sup­ported the pro­posed agree­ment on Iran, he report­edly was swamped with hate­ful mes­sages on social media.  One com­men­ta­tor referred to him as a “kappo,” a ref­er­ence to Jews who worked for the Nazis in con­cen­tra­tion camps.  curt-schilling-muslims-hitler-tweet-twitter

The Holo­caust com­par­isons are not lim­ited to the polit­i­cal world either. On August 25, ESPN “Sun­day Night Base­ball” ana­lyst and for­mer major league pitcher Curt Schilling shared a post on Twit­ter that com­pared extrem­ist Mus­lims to Nazis. The tweet sug­gested that a sim­i­lar per­cent­age of Mus­lims are extrem­ists as Ger­mans were Nazis. It also included an image of Hitler.

Such inap­pro­pri­ate Holo­caust ref­er­ences seem to sur­face around almost any con­tro­ver­sial issue. For exam­ple, dur­ing the charged polit­i­cal debate over gun con­trol in the after­math of the Sandy Hook Ele­men­tary School shoot­ing, there was a flurry of inap­pro­pri­ate invo­ca­tions of Hitler, Nazis, and gen­eral Holo­caust imagery by pub­lic fig­ures.  Oppo­si­tion to Pres­i­dent Obama’s Afford­able Care Act engen­dered sim­i­larly offen­sive comparisons.

Pub­lic dis­course today is seri­ously lack­ing in civil­ity and respect for dif­fer­ent per­spec­tives on impor­tant issues.  One unfor­tu­nate exam­ple of this lack of civil­ity is repeated inap­pro­pri­ate ref­er­ences to the Holo­caust.  It is long past time for pub­lic offi­cials and pub­lic offi­cials to stop invok­ing the Holo­caust in an effort to score polit­i­cal points.

* As a 501(c )(3) non-profit orga­ni­za­tion, the Anti-Defamation League does not sup­port or oppose can­di­dates for polit­i­cal office.

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November 20, 2014 Off

Good D.C. Circuit Ruling on ACA Contraception Mandate Opt-Out Rule

The influ­en­tial U.S. Court of Appeals for the Dis­trict of Colum­bia recently rejected legal claims by reli­gious non­prof­its assert­ing that even the min­i­mal require­ments for opt­ing out of the Afford­able Care Act’s (ACA) con­tra­cep­tion man­date vio­late their reli­gious free­dom rights.

DC Circuit Court of Appeals Building

DC Cir­cuit Court of Appeals Building

The ACA requires employer-provided health insur­ance to cover all FDA– approved pre­scrip­tion con­tra­cep­tion at no cost to employ­ees.  Houses of wor­ship and other sec­tar­ian insti­tu­tions are wholly exempted from this require­ment.  And religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or oth­er­wise pro­vid­ing notice to its health plan issuer or the Depart­ment of Health and Human Ser­vices (HHS).  In that cir­cum­stance, the health insur­ance com­pany or a third-party admin­is­tra­tor pays for and admin­is­ters the coverage.

Despite this nom­i­nal require­ment, plain­tiffs in the case called Priests for Life v. U.S. Depart­ment of Health and Human Ser­vices claim that it “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of the fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”).  They assert that the opt-out notice require­ment “trig­gers” sub­sti­tute cov­er­age and thereby – makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age in vio­la­tion of their reli­gious beliefs.

The Court soundly rejected this claim.  It found that the fil­ing of the form excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  And it fur­ther deter­mined that the ACA  — not the opt-out notice –oblig­ates health insur­ance com­pa­nies or HHS through third-party admin­is­tra­tors to pro­vide con­tra­cep­tion cov­er­age.  As a result, the Court cor­rectly con­cluded that:

Reli­gious objec­tors do not suf­fer sub­stan­tial bur­dens under RFRA where the only harm to them is that they sin­cerely feel aggrieved by their inabil­ity to pre­vent what other peo­ple do to ful­fill reg­u­la­tory objec­tives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of know­ing that third par­ties are legally priv­i­leged or oblig­ated to act in ways their reli­gion abhors.

The Court also deter­mined that the con­tra­cep­tion require­ment advances the com­pelling inter­ests of “pub­lic health and gen­der equal­ity” and the opt-out rule is the least restric­tive way to achieve these  inter­ests because it “requires as lit­tle as it can from the objec­tors while still serv­ing the government’s com­pelling state interests.”

The Court’s deci­sion appro­pri­ately ref­er­ences the real­ity of our nation’s reli­giously diverse work­force, stat­ing “[r]eligious non­prof­its like Plain­tiff orga­ni­za­tions employ mil­lions of Amer­i­cans — includ­ing indi­vid­u­als who do not share their beliefs.”   Given this diver­sity and our plu­ral­is­tic democ­racy, the Court’s deci­sion strikes the right bal­ance between reli­gious lib­erty and civil rights.

Unlike the U.S. Supreme Court’s dis­turb­ing Hobby Lobby deci­sion,  the Court in this case prop­erly rec­og­nized the true leg­isla­tive intent of RFRA: to shield to reli­gious prac­tice — not to serve as a sword to impose reli­gious beliefs on others.

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