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Published: Wednesday, 1/8/2014


Devil in the details

Sotomayor Sotomayor

The U.S. Supreme Court eventually will decide whether religious objections to contraception coverage under the Affordable Care Act are valid. The preliminary jousting has helped clarify important issues — but without suggesting a remedy.

The justices will need the wisdom of Solomon. It is important that the Affordable Care Act cover contraception services, without which the pledge of comprehensive health insurance would be a farce for millions of women. It is also important that the tenets of churches be respected, within reason.

Last week, Supreme Court Justice Sonia Sotomayor, at the request of a nonprofit charity in Colorado run by the Little Sisters of the Poor in accordance with its Catholic principles, issued a preliminary injunction staying the contraception requirement hours before it was to take effect. That led to a response filed by Solicitor General Donald Verrilli, Jr.

Mr. Verilli argued that the Catholic organization need only certify that it is a nonprofit religious group, and therefore exempt from providing coverage for contraceptive services. But the Little Sisters contend that signing a piece of paper amounts to giving their employees a permission slip for abortion drugs and contraceptives, making them complicit in what they regard as sin.

Scores of religious groups have sued over Obamacare on religious grounds. These cases share similar reasoning. What is a routine piece of paper on the government side amounts to a coupon for sinfulness on the other.

The government has the better of this argument. What is objected to represents a compromise by the Obama Administration after initial complaints. The new rules keep church leaders and clergy at arm’s length, but allows women who work for Catholic nonprofit organizations — some of them not Catholic — to make their own choice about contraception.

If the churches’ argument succeeds, all sorts of other broad religious exemptions eventually may be allowed to work their will. Puncturing the wall of separation between church and state is a perilous undertaking.

Rather than trust the Supreme Court to make a reasonable distinction, the Obama Administration should make another stab at compromise. It should exempt all religious nonprofits, and give the individuals who work for them their benefits without a piece of paper. Surely, the devil can be extracted from these details.

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