Obama’s Next Contraception Coverage Accommodation Won’t Satisfy Litigants

The Obama administration plans to tweak its accommodation under the Affordable Care Act for religious non-profits who object to providing their employees with health insurance that covers contraceptives with no co-pay. The current accommodation, being challenged by Wheaton College and dozens of other religious non-profit institutions, requires them to fill out a form, send it to the government, and let their insurance carrier (or third-party administrator) deal with the rest.

Under the Supreme Court’s not-on-the-merits-and-thus-not-binding-but-rather-revealing opinion in Wheaton College v. Burwell, it seems possible that the Court could rule that the form, but not some other way of notifying the government, violates the Religious Freedom Restoration Act—hence the government’s effort to create a slightly different hoop to jump through.

As Marty Lederman points out, there appears to be no other mechanism the government could propose that would satisfy some of the plaintiffs in these cases. Based on court filings in challenges brought by Priests for Life, The Catholic University of America, and Thomas Aquinas College, “we now know for sure that at least some plaintiffs will not abandon their RFRA claims, no matter what the government does, as long as the government continues to require plan issuers or TPAs to offer contraceptive coverage to the objecting employer’s employees when the employer opts out.” (emphasis added)

Their argument is based on a theory of “complicity,” or, as the plaintiffs put it in court filings:

Appellants have asserted an undisputed sincere religious objection not only to signing and submitting the self-certification [i.e., Form 700], but also to offering health plans through an insurance company or third-party administrator authorized to provide contraceptive coverage to students and employees who are “are enrolled in [those] plan[s].” 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(c)(2)(i)(B); Appellants’ Br. at 26-27.  The Government has offered no way for Appellants to avoid that religiously impermissible course of action.

But Lederman argues that the “premise of this argument is mistaken,” since the regulation:

does not require the organizations to contract with an issuer or a TPA. . . But even if that were not the case—i.e., even if federal law coerced the organizations to contract with such an issuer or TPA—Thomas Aquinas College and the other plaintiffs haven’t offered any explanation for why, according to their religion, the College’s responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees’ eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees’ contraceptive services.

In other words, it’s the law and the regulation that require the coverage, not the employer. The government isn’t compelling employers to contract with a particular insurer that provides the coverage; it’s requiring that all insurers who cover employer-provided group health plans provide the coverage. But in any case, as Lederman points out, it’s a bit of a stretch, to say the least, to say that continuing to contract with an insurer that provides required coverage makes the employer complicit in an alleged moral wrong, given that the employer is not required to pay or arrange for the coverage. But given that the Supreme Court already shifted its views on this in the course of one week, it’s hard to predict how this will turn out.