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A perhaps unintended consequence of Administration compromises on the birth control benefit is to concede that insurance coverage of contraception can be "participation in sin." Women's rights activists and attorneys must adjust and re-frame the argument to address this new development in birth control benefit litigation.

Written by Imani Gandy for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Recently, the district court for District of Columbia granted a request by Tyndale House Publishers to block the Affordable Care Act birth control benefit ensuring that employer-sponsored health insurance include coverage of contraception without a co-pay. (Jessica Mason Pielko wrote about the ruling here.)

Like so many other organizations, both religious and secular, for-profit and non-profit, Tyndale's complaints are the same: the birth control benefit in the ACA infringes upon their right to religious freedom:

Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization. But Defendants' recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization. The government's mandate exempts what it calls "religious employers," but denies that status to Tyndale House Publishers through its arbitrary definition.

What sets Tyndale apart from other companies challenging the birth control benefit, some of which have been successful in their challenges, and some of which have not, is that Tyndale is self-insured, whereas companies like Hobby Lobby purchase group health insurance plans from a commercial insurance carrier. In other words, Tyndale wholly assumes and underwrites the risk for providing health care to its employees (and pays for it out of its own coffers), while Hobby Lobby pays premiums to an outside insurance company. That it is self-insured means that Tyndale is paying directly for the insurance coverage of the contraception that it views as sinful, and the court found that this distinguishable fact rendered the birth control benefit sufficiently violative of Tyndale's right to religious freedom.  

Now, the court did not reach this decision in a vacuum, mind you. The Obama Administration's compromise with the United States Conference of Catholic Bishops (USCCB) paved the way. 

If you recall, the contraception kerfuffle began in February 2012 over one question: should employers be required to offer health insurance plans that cover contraception? In an effort to compromise with the USCCB and other religious organizations that balked at the notion of providing "slut-pills" to women, the Obama Administration allowed religiously-affiliated employers to avoid providing contraception coverage, and instead required health insurance companies to offer it directly. The Obama Administration allowed certain religious employers to keep their fingers entirely out of the contraception pie, and put the onus on insurance companies to fill the contraceptive gap. And in so doing, the Administration ceded that paying for contraception is, in and of itself, participation in sin, thus paving the way for self-insured organizations to raise Establishment Clause and Religious Freedom Restoration Act (RFRA) claims that will be (and are being) analyzed differently than the claims raised by organizations that are commercially insured.

Notwithstanding the distinction between self-insurance and regular commercial insurance, the claims challenging the birth control benefit are specious -- both constitutionally and as a matter of church doctrine. Still, women's rights activists and attorneys must adjust and re-frame the argument to take into account this new development in the birth control benefit lawsuits.  

Rather than focusing on who is paying money for what healthcare services, a better way to look at it -- and, indeed, the most sensible way to look at it -- is that companies providing a full range of health-care services, including contraception, are offering their employees a choice to participate in sin or not, just as employees who pay wages to their employees are offering employees that same choice.

Imagine if Tyndale filed a lawsuit challenging federal minimum wage laws. Would it make sense to allow Tyndale to argue that it should be exempt from paying its employees a fair wage out of fear that its employees would use that money to purchase contraception? Of course not. The religious nexus between paying employee wages and subsequent employee commission of sin is too great.

It might surprise you that Catholic scholars agree -- at least one does. As Dr. Jeff Mirus of CatholicCulture.org notes, sometimes the remote participation in immorality is unavoidable:

In the absence of a contrary declaration by the Magisterium of the Church (to which I would submit immediately), it seems clear to me that the purchase of health insurance which includes some elements of immoral coverage is a matter of remote material cooperation with evil in a situation where it is all but impossible to avoid that remote cooperation. Just as we may morally pay taxes even though some tax money is used immorally and we may morally patronize various business which use a portion of their earnings immorally (and in fact this is inescapable in the modern world), so too I believe that if there is no reasonable way to avoid health insurance with some elements of immoral coverage, then it is not immoral to purchase such coverage.

If purchasing a group health insurance plan that includes contraception constitutes "participation" or "cooperation in evil," then that participation is remote at best. For example, adhering to a hypothetical regulation requiring religiously-affiliated employers to shove contraception down the throats of female employees would certainly be a direct participation in evil. Requiring religiously-affiliated employers to purchase insurance that includes contraception coverage, on the other hand, is a remote participation in evil. And the Obama administration's compromise -- relieving religiously-affiliated organizations of the obligation to pay for contraception directly, and instead, shifting that burden onto insurance companies -- falls somewhere between a remote participation in evil and a direct participation in evil.

It's a sliding scale of sin.

The question becomes, at what point along the scale between remote participation in evil and direct participation in evil does the balance tip in favor of women and against religious organizations that believe it is their religious duty to ensure that women are stripped of the freedom to choose whether or not they want to use contraception and brand themselves as sinners?

At a certain point, the Catholic Church and other religious organizations must let their flock make their own choices. At a certain point, participation or cooperation in evil becomes far too remote to constitute an infringement on religious liberty. And ultimately, the pseudo-religious complaints about providing contraception, or paying for contraception must give way to common sense, fairness, and justice, whether or not employers pay directly for contraception, or do so through insurance carriers.

Certainly, the distinction between full insurance and self-insurance is an important one, and the religious outcry over the birth control benefit made it necessary for the Obama Administration to compromise, perhaps without giving much thought to how such a compromise would play out in the courts.  But the result of that compromise has paved the way for courts to hang their constitutional hat on the difference between self-insurance and "regular" insurance when it is a distinction without a difference.  

Tyndale claims that paying directly for contraception is a grievous violation of its religious freedom, and as a matter of law, courts are not permitted to nitpick those claims. Tyndale says it's a sin? Fine. It's a sin. But realistically, Tyndale could just as easily argue that paying workers a fair wage -- or indeed any wage -- is a religious violation, and I'm fairly certain that we can all agree that would be an absurd argument.

So what's the point?

The point is this: We must begin discussion contraception access in terms of fairness. We must view access to contraception for women as being as important as the right to minimum wage.

The argument over contraception is not a religious one. It's an argument about equality, health care, prevention, and basic human rights. We musn't lose sight of that.

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