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
Sam Baker
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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