Nice Try, but Obama’s Latest Attempt at a Contraception Mandate Accommodation Won’t Work

The law, lawyers, and the court.
Aug. 26 2014 12:24 PM

Nice Try, Obama

The president’s latest accommodation to the contraception mandate has one problem: Religious employers won’t go for it. 

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In other words, the groups say that being asked to play any role at all in this handoff substantially burdens their religious rights by making them complicit. Georgetown law professor Marty Lederman, who has written many words about these suits, put it this way when I called him: “The new rule takes care of all the arguments the religious groups are making except one: ‘We’re still complicit because we’re like Yenta—we matched up Aetna with these particular employees.’ ”

This brings us to the real crux of the issue, which Hobby Lobby and all the other litigation has so far obscured: The government wants the employees at the heart of these cases to get the contraception coverage everyone else’s employees get, through their employment. The religious employers do not.

In its Hobby Lobby ruling in June, the Supreme Court seemed to suggest that the government’s goal was a perfectly acceptable one—easily reached, with a little rewriting of the rules. In his majority opinion, Justice Samuel Alito appeared to see Form 700 as a good compromise. TPAs could arrange for contraceptive coverage, Alito said, “without imposing any cost-sharing requirements on the eligible organization.” This was all very soothing. Alito went so far as to make the government’s stance, in insisting that Hobby Lobby cover birth control for its employees directly, seem a little silly. If the officials at HHS who came up with Form 700 had figured out an accommodation for the religious nonprofit groups, why not offer to extend it to private companies like Hobby Lobby?

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But there was a catch. “We do not decide today whether an approach of this type complies with RFRA”—the Religious Freedom Restoration Act, the 1990s law that’s the basis for all of these religion-based challenges to paying for birth control—“for purposes of all religious claims,” Alito wrote. A week later, the court walked through this conveniently open door. Wheaton College, which is Christian, didn’t want to sign Form 700, and in another interim but telling order, the court said it didn’t have to. No wonder all the other religious groups and “privately held” companies want the same deal.

In the Wheaton College case, Sotomayor (plus Justice Elena Kagan and Justice Ruth Bader Ginsburg) raised hell. In an unusual act of all-female solidarity, the three justices said the court’s order siding with Wheaton “undermines confidence in this institution” because it contradicts the promise the majority made in Hobby Lobby. To me, it looks like some justices thought they’d reached a nice compromise for the religious objectors in Hobby Lobby, only to find that others weren’t along for the ride.

Here’s the question behind the divide on the court: If the government doesn’t know which groups aren’t paying for birth control, because they don’t fill out a form or send in a letter, how can it make sure the employees get their contraception coverage? It can’t. What it could do instead, as the Becket Fund’s Blomberg  pointed out to me, is provide contraceptives itself. If you’re inclined, you can insert an ode here to the beauties of a single-payer, government-run health care system. If Obamacare wasn’t built atop employer-based health insurance, we wouldn’t be having this fight. (Though I somehow doubt the groups suing over the mandate and accommodations would have supported single-payer.)

Oh well. What will the courts make of the Obama administration’s new rule and the religious groups’ continuing objections? We’ll probably get an answer of some kind soon from the U.S. Court of Appeals for the District of Columbia Circuit, which heard arguments in May in a case named after the group Priests for Life. The judges might want to take into account this point from Lederman about the way in which the goal posts seem to be moving: “If the government can always be accused of under-accommodation whenever it grants some religious accommodation to one group but not to others, that creates a huge disincentive to grant it at all.” That’s the long view. The shorter one is: The religious right wins.

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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