The Affordable Care Act contains a requirement that company health insurance which covers prescription drugs must cover contraceptive medication. Exemptions are provided for religious institutions where objection to contraception is part of their doctrinal belief. Twenty-eight states have similar mandates in their insurance laws and these have been upheld in court. In California Catholic Charities of Sacramento challenged the requirement and lost. When they appealed to the California Supreme Court, they lost again, and the United States Supreme Court has refused to hear their case.

Now Hobby Lobby stores have sued to have the exemption extended to their business, which is not a religious institution in the legal definition, because the owners object to contraception, forms of which they consider to be abortion (IUD's and the morning after pill).

In the past the courts have not granted exemptions to religiously neutral laws of general applicability simply on the basis of religious objections, but Congress passed and President Clinton signed the Religious Freedom Restoration Act (RFRA) by an almost unanimous vote in 1993, essentially nullifying that practice on the grounds of a finding by Congress that neutral laws could substantially burden religious freedom.

Now the federal government is required to defend any action deemed burdensome to religious freedom as deriving from a compelling government interest and being the least invasive means possible for attaining that goal. In other words while Congress cannot make a law regarding the establishment of a religion, it can protect religious sensibilities by elevating religion in general to a privileged place in law. The RFRA was found unconstitutional in part in a case involving the Catholic Church because the law was interpreted as applying to states and municipalities, which exceeds the enforcement authority of Congress.

Given that six of the Supreme Court Justices are Roman Catholic, it seems quite likely that Hobby Lobby will prevail and that private for-profit companies will be able to ignore any provisions of law that it deems offensive to the religious sensibilities of the owners. Presumably business owners who object on religious grounds to blood transfusions can have them excluded from coverage.

I take this as another sign the country is moving to the right at a rapid pace. This is not good news for atheists.

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In a piece I got via the Daily Kos, there is some very important data to be found:

In a potential key moment, as reported by WSJ, Justice Kennedy asked Clement:

[H]ow the court should take into account the religious rights of employees, which may differ from the religious views of their employer. He asked: Under the challengers’ arguments, do employer rights trump those of workers?  Among other things, Mr. Clement suggested the government could step in to subsidize contraception coverage for women who work at companies that don’t provide it, just as the government is doing in cases involving objections by religious nonprofits. [Emphasis supplied.]

Kennedy gets to a key point: The health insurance rights belongs to the employees, not the employers. They are created by federal law. Surely the religious views of the employers cannot determine the applicability of federal rights belonging to the employees. [emphasis mine]

I don't know how much Justice Kennedy's observation is going to have on Roberts, Scalia, Thomas (does ANYTHING impress him?!?) or Alito ... but it damned well should.

Thanks for passing that along! There's hope.

The health insurance rights belongs to the employees, not the employers. They are created by federal law

I'm not sure—Congress left the determination of coverage under health plans to be set by administrative rules, not laws. In addition religious institutions are already exempted, so why not others?

Presumably business owners who object on religious grounds to blood transfusions can have them excluded from coverage.

Kagan used the same argument. 

Im concerned about this too.

On the other hand, the catholic church is so antigay, especially under the prior pope.  But they still made one of the biggest moves in history to forward LGBT equality.  So I don't know.

It's kind of like, in the 60s when westerners were trying to figure out what the Kremlin was going to do next.  Or Mao.

The 1st Amendment says Congress shall make no law respecting an establishment of religion. Seems clear to me that kowtowing to religious belief, especially in the market place, is a violation of that constitutional provision. I realize Alito, Scalia, Thomas, and probably Roberts, don't respect that. However, my opinion is that if you wish to engage in commerce in the marketplace, then you are obliged to follow the rules governing the market place. You no like a da rules, you no playa da game. Close the f---ing chain stores if you don't want to abide by the law of the land.

I agree that it is perilously close to establishment if not actually over the line. I don't see the argument on the other side at all. All the employer does is make a plan available to employees which includes contraceptive medication. He is not practicing contraception himself or encouraging or directing others to do so, merely accepting their privilege of choosing for themselves.

Don't most employees pay a portion of their insurance premium?  I have had to do that in every job I've ever had.  Why can't birth control be funded by the employee's portion?  A legal fiction, I know, but I'm starting to think "legal" and "fiction" are synonyms.

So they pay some of the premium.  My understating is that it isn't itemized.  They are paying a flat fee.  They wouldn't be paying less just because contraceptives aren't a part of it.

You are right that most employees contribute to healthcare premiums—on the average about one third of the total premium. Consequently they should have some say in what is covered.

However you do not understand even in the slightest degree the extremely delicate nature of the Christian conscience on this issue. When Robert Bork wrote his infamous article on Griswold v. Connecticut in 1971, he said that it was a matter of satisfaction on both sides whether people used contraception. He found it disturbing to think that they did.

Even thinking that others are allowed to prevent contraception disturbs the Christian conscience and must not be allowed no matter what the cost.

Oh, I understand how THEY think.  And I know it's not itemized.  Hence the term "legal fiction," which seems a logical response to the legal fiction that corporations are people who share the religion of their owners.  I was hoping the nine empty robes of SCOTUS could pull some of their usual hocus pocus behind closed doors. Sorry, I meant eight empty robes.  One of them is actually full of shit.

Are you sure it's just one?


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