James Capretta explains at National Review Online why he’s wary of a U.S. Supreme Court “solution” in the latest case involving the Affordable Care Act.
Last week, the Supreme Court took the unusual step of asking the parties in Little Sisters of the Poor v. Burwell to submit additional briefs describing how employees might get access to no-cost contraceptives through insurance without conscripting unwilling, religiously affiliated employers into the transaction. In other words, the Court seems to be searching for a way out of another in a string of legal messes the Obama administration has created over the past five years. …
… The Court has asked the parties in the case to react to a specific alternative approach. The Court suggests allowing insurers to offer coverage excluding the objectionable products and services, without any kind of separate notification to the government, to the employees, or to the insurers. Insurers would then separately notify the employees of these employers that they will get coverage for the excluded products and services directly from the insurer.
Some Supreme Court justices may be thinking that elimination of any notification requirement by the employer makes this approach less burdensome and therefore more acceptable than the current accommodation. They are wrong. The scheme the Court has sketched out is really no different from the current accommodation. A Catholic employer offering a health plan to its workers would know that the effect of a decision to offer insurance would result in their employees being covered by a plan that provides for free contraceptives. It doesn’t matter that it is a two-step process. The result is always the same, and there’s no way around it.
Further, there is no provision in law authorizing the administration to force insurers to offer an insurance plan to consumers who are paying them no premiums for the coverage. It would be another unlawful requirement imposed in the name of making Obamacare function. The Court should not provide sanction for such lawlessness.