What the White House Can Do Now on the Contraception Mandate

The administration’s next steps and the next legal challenges go hand in hand.

National Journal
June 30, 2014, 4:33 p.m.

The White House can soften the Su­preme Court’s blow to Obama­care’s con­tra­cep­tion man­date — but not without rais­ing the stakes for the next round of law­suits aimed at the policy.

In a 5-4 de­cision, the high court said Monday that cer­tain busi­nesses must be able to opt out of the birth-con­trol man­date based on their own­ers’ re­li­gious be­liefs. Now the White House is look­ing for ways to en­sure that as many wo­men as pos­sible still have ac­cess to the be­ne­fits spelled out in the Af­ford­able Care Act — even if their em­ploy­ers opt out.

The most ob­vi­ous op­tion: Let for-profit com­pan­ies like Hobby Lobby take ad­vant­age of a par­tial ex­emp­tion the ad­min­is­tra­tion has already cre­ated, in re­sponse to oth­er con­cerns about re­li­gious free­dom. In fact, the Su­preme Court sug­ges­ted that op­tion sev­er­al times in Monday’s rul­ing.

But there’s a risk the Su­preme Court could strike down that op­tion in a year or two — mean­ing the ad­min­is­tra­tion’s ef­fort to fix an il­leg­al man­date could turn out to be il­leg­al, too.

The justices noted sev­er­al times on Monday that re­li­gious-af­fil­i­ated em­ploy­ers, like Cath­ol­ic hos­pit­als and uni­versit­ies, already have a sort of middle-ground op­tion on the con­tra­cep­tion man­date. The White House gran­ted those em­ploy­ers an “ac­com­mod­a­tion” in re­sponse to their re­li­gious ob­jec­tions to cer­tain forms of birth con­trol.

The Su­preme Court spe­cific­ally men­tioned that ac­com­mod­a­tion in its Hobby Lobby rul­ing, cit­ing it as proof that the ad­min­is­tra­tion can ad­vance its policy goals without for­cing all em­ploy­ers to pay for con­tra­cep­tion cov­er­age.

Health and Hu­man Ser­vices “has provided no reas­on why the same sys­tem can­not be made avail­able when the own­ers of for-profit cor­por­a­tions have sim­il­ar re­li­gious ob­jec­tions. We there­fore con­clude that this sys­tem con­sti­tutes an al­tern­at­ive that achieves all of the Gov­ern­ment’s aims while provid­ing great­er re­spect for re­li­gious liberty,” Justice Samuel Al­tio wrote for the ma­jor­ity.

That might seem like Alito provid­ing a clear al­tern­at­ive for the White House: Just use the ac­com­mod­a­tion you’ve already cre­ated.

Un­der the HHS policy for re­li­gious-af­fil­i­ated em­ploy­ers, all con­tra­cept­ives ap­proved by the Food and Drug Ad­min­is­tra­tion still have to be in­cluded in em­ploy­ees’ health care plans, without any cost shar­ing for the work­er — the same terms that ap­ply to most com­pan­ies. But re­li­gious-af­fil­i­ated em­ploy­ers don’t have to pay for that cov­er­age or do any­thing to fa­cil­it­ate it. Those du­ties fall to the in­sur­ance com­pan­ies that ad­min­is­ter their plans.

The same setup might work for Hobby Lobby, Alito said.

“The ef­fect of the HHS-cre­ated ac­com­mod­a­tion on the wo­men em­ployed by Hobby Lobby and the oth­er com­pan­ies in­volved in these cases would be pre­cisely zero. Un­der that ac­com­mod­a­tion, these wo­men would still be en­titled to all FDA-ap­proved con­tra­cept­ives without cost-shar­ing,” Alito wrote.

But even as the Su­preme Court kept sug­gest­ing the HHS “ac­com­mod­a­tion” as an op­tion for Hobby Lobby and oth­er for-profit com­pan­ies, it didn’t spe­cific­ally say wheth­er that policy is leg­al — and it’s the sub­ject of the next leg­al battle over the con­tra­cep­tion man­date.

“It’s rather odd that the Court re­lies in no small part on this po­ten­tial ac­com­mod­a­tion, but then notes that it hasn’t yet opined on the leg­al­ity or suf­fi­ciency of that ac­com­mod­a­tion,” said Eliza­beth Wydra, chief coun­sel at the lib­er­al Con­sti­tu­tion­al Ac­count­ab­il­ity Cen­ter.

Fifty-one re­li­gious non­profits have filed law­suits against the birth-con­trol man­date, ac­cord­ing to the Beck­et Fund for Re­li­gious Liberty, which is co­ordin­at­ing the leg­al cam­paign against the policy. Those plaintiffs say the HHS ac­com­mod­a­tion is in­ad­equate and still vi­ol­ates their re­li­gious free­dom. (They were the first to start chal­len­ging the birth-con­trol man­date; cases from for-profit em­ploy­ers just happened to make it to the Su­preme Court first.)

Mark Ri­en­zi, the Beck­et Fund’s seni­or coun­sel, said he be­lieves the ac­com­mod­a­tion will also fall if and when it gets to the Su­preme Court. Even though Alito made sev­er­al ref­er­ences to the policy as a less-bur­den­some al­tern­at­ive, Ri­en­zi said he was en­cour­aged by the rul­ing’s broad­er ex­plan­a­tion of why the con­tra­cep­tion man­date vi­ol­ates a 1993 law called the Re­li­gious Free­dom Res­tor­a­tion Act.

“The way the Court says RFRA works seems to doom the ac­com­mod­a­tion,” Ri­en­zi said. “The gov­ern­ment’s ar­gu­ment in the non­profit cases is very sim­il­ar.”

The only work­able al­tern­at­ive, Ri­en­zi said, would be for the gov­ern­ment to pay for con­tra­cep­tion cov­er­age it­self — an­oth­er al­tern­at­ive Alito men­tioned.

“I don’t think many of them would be com­plain­ing about that res­ult,” Ri­en­zi said.

But sup­port­ers of the con­tra­cep­tion man­date said the gov­ern­ment won’t need to go that far. They be­lieve the HHS ac­com­mod­a­tion will pass leg­al muster, even though the justices avoided ad­dress­ing it dir­ectly on Monday.

“It would be sur­pris­ing if the Court touted this al­tern­at­ive, ap­par­ently less-re­strict­ive means of meet­ing the gov­ern­ment’s com­pel­ling in­terest in provid­ing con­tra­cep­tion cov­er­age and then later ruled that it was too re­strict­ive,” Wydra said.

Justice An­thony Kennedy seemed par­tic­u­larly open to resolv­ing Hobby Lobby’s claims through an ex­ten­sion of the non­profit ac­com­mod­a­tion. He filed a brief con­cur­ring opin­ion that fo­cused al­most ex­clus­ively on the oth­er op­tions HHS has.

By re­quir­ing com­pan­ies like Hobby Lobby to provide con­tra­cep­tion cov­er­age, Kennedy wrote, HHS was “dis­tin­guish­ing between dif­fer­ent re­li­gious be­liev­ers — bur­den­ing one while ac­com­mod­at­ing the oth­er — when it may treat both equally by of­fer­ing both of them the same ac­com­mod­a­tion.”

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