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.

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.

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.”

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?

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.