Supreme Court Again Seeks Contraceptive Compromise – Here Is An Idea!

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Supreme Court Again Seeks Contraceptive Compromise – Here’s One!
Expert Proposes Well Established Technique to Prevent Another 4-4 Split
WASHINGTON, D.C. (May 16, 2016): In an unusual move, the Supreme Court – possibly deadlocked 4-4 – sent back to the appellate courts the so-called “contraceptive mandate” cases, hoping that they will be able to forge a compromise which would respect the objections of religious non-profits to participating in contraceptive coverage, while at the same time making it available under Obamacare to their employees.

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 compromise solution – one which he says has stood the test of time, and which he himself has employed very often.

Supreme Court  – idea

The answer, says Professor John Banzhaf, is to follow the same procedure the government has used in many situations, including several in which Banzhaf 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 with the CAB 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 employers are not required to do anything at all – even as little as signing a form, or just sending a letter, to which they object – 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 engage in major educational campaigns so all female employees would be aware of their rights to contraceptive coverage, despite employer objections.

It would also be very easy for them to establish websites providing this basic advice, and permitting women who are affected 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 appropriate 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 easily 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.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418 [email protected] @profbanzhaf


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