Supreme Court Seeks contraceptive coverage Compromise – Here It Is!

Expert Proposes Well Established Technique to Prevent Another 4-4 Split
WASHINGTON, D.C. (March 29, 2016): The Supreme Court, apparently divided 4-4 on a case pitting the rights of employees to have contraception provided under Obamacare, and the rights of religious employers not to have to participate directly or even indirectly in providing such coverage, has today ordered the parties to submit proposals to protect both rights.

A public interest law professor, who has won several unusual Supreme Court cases, but who has no direct involvement with either side, is proposing exactly such a solution – one which he says has stood the test of time, and which he has employed many times.

 

contraceptive coverage
Photo Credit: Asiamcclearygaddy, WikiMedia

The Supreme Court’s order read in part: “The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

The answer, says Professor John Banzhaf, is to follow the same procedure the government has used in many situations, including several in which Banzhaf himself was involved: rely upon those adversely affected to notify the government – anonymously if necessary – of failures so that corrective action could be taken.

Banzhaf says that when he obtained a federal ruling requiring broadcasters to make free time available for antismoking messages, broadcasters largely did not begin to comply until he filed complaints about their noncompliance with the FCC. Similarly, when airlines refused to accommodate nonsmokers in accordance with federal law, he filed complaints which brought about very quick change.

It is not unreasonable to ask employees desiring contraceptive coverage under Obamacare, but not receiving it because their religious employer did not request it, to file a simple notification with the federal government, naming the employer and the insurance company.

The government can then simply direct the insurance company to provide the appropriate contraceptive coverage, and the employer is not required to do anything at all – even as little as signing a form or just sending a letter – for the omission to be corrected.

One can reasonably assume that public interest organizations which favor contraceptive coverage, as well as companies which sell contraceptives, would provide major educational campaigns so all female employees will be aware of their rights to contraceptive coverage, despite employer objections.

It would also be very easy to establish websites providing this basic information, and permitting women to input over the Internet the required information about their employer, their health insurance company, etc – information which the web site operator could then easily and quickly forward, in proper electronic form, to the proper government agency.

Banzhaf notes that many governmental services operate on the principle that they will take action when they receive notifications that a service is not being provided, a law is being broken, etc.

“If your trash isn’t picked up when it should be, if your bank did not send you required tax forms, or if your employer does not provide the job protections to which you are entitled by law, a complaint or other notification to a government agency can trigger an appropriate response,” he says.

Exactly the same technique can be used here in a compromise the Supreme Court is actively seeking – simply asking employees who are not receiving contraceptive coverage to report the matter.

Banzhaf says he may submit his proposal to the High Court and/or to the parties.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,