by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law
The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive 
freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.
The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.
With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”
da, along with 11 other Republican State Attorneys General and one Democrat, filed suit seven minutes after President Obama signed it into law. Four of the Republican AGs proceeded over the objections of their Democratic governors. A twelfth Republican AG, from Virginia, sued separately.
When the curtain rises on the Affordable Care Act arguments before the United States Supreme Court, the nation will be fully engaged in what is perhaps the most important legal examination in generations regarding Congress’s constitutional powers to tackle issues of unsurpassed social and economic concern. Although Chief Justice Roberts has likened the role of the courts to that of an umpire in a baseball game, one can hope that the Justices will view the case for its broader significance for the health care system as a whole, as well as for the 32 million children and adults whose access to health insurance rests great measure in their hands. A declaration that the Act is unconstitutional will not merely nullify its provisions. Under federal budgeting principles, it will effectively roll the federal health reform spending baseline back to zero. The likelihood that Congress will, anytime soon, find the $1.5 trillion needed to make coverage affordable for nearly all Americans is slim to nil, something that the Act’s opponents frankly are banking on.