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In all events, then, an employer using a church plan can control whether its employees will be able to receive cost-free contraception: employees' contraceptive use will not be subsidized unless both the employer and the TPA do not object to such payments. In this respect, employers that object to such TPA payments truly are, in all practical respects, already exempt from the regulation and thus, as I've argued previously, there is nothing at stake in the RFRA claims brought by employers who use church plans, such as Little Sisters. (Indeed, it follows that the accommodation regulation cannot possibly impose a substantial burden on such employers' religious exercise, because if their employees do not receive coverage, there will be no purportedly immoral conduct in which the petitioners could possibly be complicit. See Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1189 (10th Cir. 2015) ("The lack of substantial burden is especially evident when the group health plan is administered by a TPA that has made clear it will not provide contraceptive coverage . . . .").)
At this point, you might well be wondering: So what's at stake in Little Sisters and the other church plan cases? The honest answer is: nothing. Or at least, nothing will be at stake if and when Little Sisters and other such employers ensure that all of their TPAs will decline to provide payments for contraception. Ideally, what would happen in those cases is that the employers would withdraw their RFRA objections (since there'd be no risk of any payments being made to their employees), or, alternatively, that the courts would dismiss them for lack of any substantial burden (as the Tenth Circuit did). If, however, plaintiffs such as Little Sisters continue, for some inscrutable reason, to press their RFRA claims, even when there is no risk that their employees will be compensated for contraception, it would not surprise me if the government agrees to settle such cases by disclaiming any intent to impose a fine on such organizations in cases where the organization attests to the government that none of its TPAs will provide contraception payments. Indeed, that is what I understood Solicitor General Verrilli to be saying at oral argument when he answered "no" to Justice Alito's question about whether, "in that situation," Little Sisters would "still be subject to fines for failing to comply."
For these reasons, I think it is likely that the church plan cases, such as Little Sisters, will be amicably resolved in the lower courts, and will not make their way back to the Supreme Court. Those cases have, from the start, been much ado about nothing.
originally posted by: burgerbuddy
Yup, since 1839.
$70 mil a year in fines.
300 little sisters in 27 homes they run.