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. 

Employer Paid Birth Control Supporters
Supporters of employer-paid birth control rally in front of the Supreme Court before the decision in Burwell v. Hobby Lobby was announced on June 30, 2014, in Washington.

Photo by Chip Somodevilla/Getty Images

I would like to be snoozing my way though the legal news in this last week of August, but the Obama administration has woken me up with a new effort to address the concerns of religious employers who don’t want to pay for birth control for their workers. The latest crack is a nice try, but it’s not going to end the lawsuits over the contraception mandate. Some of the religious employers don’t like the new fix any more than they liked the old one.

Emily Bazelon Emily Bazelon

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

In the initial fight over the contraception mandate, the religious groups that are currently suing—nonprofits that include universities and charities—got what they call a “partial” accommodation. Instead of providing birth control to their employees directly via their insurance plans, these groups could file a two-page form (Form 700, it’s called) in which they certified that they were religious nonprofit organizations that oppose providing some or all of the birth control services required by the Affordable Care Act , as part of comprehensive health care for women. The groups quickly argued that this partial accommodation was no accommodation at all, from their point of view. They argued that the act of signing Form 700 and sending it in implicated them in providing the contraception, by setting in motion the process through which the “third-party administrators” (TPAs, for short—sorry, but you are going to need that jargon below) of their health insurance plans would then offer women the birth control.

Maybe you think that taking a few minutes to sign a form is hardly a substantial burden on the free exercise of religion—the legal showing the groups have to make to win in court. But they looked around and noticed that houses of worship (churches, mosques, synagogues) got a simpler, and in their view better, accommodation: They got out of paying for birth control without having to do anything—no form to fill out, nothing. Also, no contraception for their employees. Full stop. It’s becoming more and more clear that the schools and charities want nothing less than the same deal.

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As lawsuits challenging Form 700 sprung up around the country, some judges said that making a group turn in the form violated its religious freedom, and other judges said that it did not. Last January, in a preliminary order, Justice Sonia Sotomayor said that the Little Sisters of the Poor, which provides housing to elderly people in need, didn’t have to fill out Form 700 or notify its TPA that it wasn’t paying for the birth control. Instead, Sotomayor said, Little Sisters could “inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.” In other words, Little Sisters could substitute a letter for the form, and they only had to send it to the government rather than contact the TPAs.

This letter-writing idea led the Obama administration, last Friday, to its latest try at stopping the contraception lawsuits, while still providing birth control via employer insurance plans: Any group that doesn’t want to send in Form 700 can tell HHS that it has a religious objection to offering contraceptive coverage. It also has to send in the name of its TPA. But it doesn’t have to contact the TPA itself. That will be the government’s job. The government will also pay back the TPAs. Oh, and the government is also offering this arrangement to “privately held” corporations like Hobby Lobby, though it hasn’t figured out exactly how to define that magical phrase from the Supreme Court’s opinion, so it’s asking for feedback on that point.

Here’s why this new rule isn’t going to end the lawsuits anytime soon: Little Sisters and the others don’t want a new mechanism for alerting the government so a TPA can provide birth control. “The government has never offered a reason why it needed to coerce the Little Sisters and others to be a part of its contraceptive delivery system, nor any reason why it chose to treat the Little Sisters as less deserving of religious liberty than houses of worship,” Daniel Blomberg, a lawyer for the Becket Fund, which represents Little Sisters, emailed me. “It is disappointing that the government continues to treat religious ministries as not religious enough to deserve the same exemption it gives houses of worship.”