The cases involving religious freedom and the contraception mandate took an interesting turn last week. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the main arguments of the religious employer claimants were that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make the employer complicit with the provision of contraceptives. This is a rather extravagant view of moral complicity particularly given the public moral objection to its provision. It is at odds with standard Catholic teaching on moral complicity as the discussion by Cathleen Kaveny makes clear (cited by Michael Perry on this site here). The claim of the Little Sisters of the Poor might be more attractively stated if it argued that it had religious objections to associating with companies that offer protection for contraceptives. Even so, this contention would not fit with Catholic teaching. I also wonder whether the Little Sisters of the Poor actually refuse to associate with companies that engage in sin from the Catholic perspective. For example, are the companies in its pension plans squeaky clean? Its suppliers? Admittedly, the government conceded sincerity, but I wonder if legitimate questions could be raised about their practices from their own perspective.
The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the Little Sisters said they were not objecting to the objection requirement, they were objecting to naming the insurance company. I can see how the latter raises complicity concerns on their part. Their naming of the insurance company helps the government enforce the contraception mandate.
So here came the interesting turn last week, a turn that has been discussed from many perspectives including that of my colleague Michael Dorf here. The Court asked for briefing on the question whether contraceptives could be provided to employees through the employer’s insurance with no notice to the government, but with communication by the employer to the insurance company that it did not want the plan to cover contraceptives because it objected on religious grounds. Reading through the lines, it appears that the Court will not accept the high jacking argument, but is at least sensitive to the claim that an employer should not have to tell the government who its insurance company is. To me, assuming the high jacking issue is off the table, it is not clear to me why the Little Sisters need to be legally obliged to provide notice. I am no expert on the workings of this, but it seems that if institutions like Little Sisters say nothing to anyone, the insurance company will be obliged under the mandate to provide contraception insurance. If Little Sisters wants to distance themselves from the coverage, they would have to tell the insurance company. No government regulation is needed except to make sure that when objections are made that the insurance company is required to provide contraception coverage.
I do not know if current regulations would yet pose such an obligation on insurance companies with no notice requirements or new notice requirement. If they are not in place, and if Hobby Lobby is followed on this point, women will be denied coverage until a new regulation is in place. Justice Alito claimed in Hobby Lobby that there would be zero effect on women. Because of the time lag for new regulations, this assurance was betrayed. Hopefully, that will not happen here.