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.

Sarah Posner, author of God’s Profits: Faith, Fraud, and the Republican Crusade for Values Voters, covers politics and religion. Her work has appeared in The Washington Post, The Guardian, The Atlantic, The American ProspectThe NationSalon, and other publications. Follow her on TwitterRSS feed Email

  • Jim Reed

    There is a saying in the rest of the world that Americans always do the right thing, after trying everything else first. Hopefully some time in the next hundred years or so we will get to a universal single payer system.

  • Eric

    In their unending quest to control women’s sexuality, these litigants and their supporters oppose any measure that even reminds them that women use contraception. To acknowledge the existence of women who use contraception is, in their twisted minds, to violate of their religious consciences, because the fact that reality does not conform to their ideology is intolerable. Sad.

  • DKeane123

    Single payer contraception?

  • maryf

    Sad isn’t the word for it. Pathetic maybe. Atavistic possibly.

  • Frank2918

    Gosh more tired, silly rhetoric. It’s all they got apparently. Facts be damned.

  • Christopher

    How many of you would have an association, at all, with Hitler’s Final Solution? Would you just say: “Well it’s the law so we must comply”? Or would you say, “I will have nothing to do with this or contribute to it in any way”? Or would you be satisfied to be somewhere in between?

    What would you do if the president and congress passed laws diametrically opposed to your concept of liberty? Would you pledge you life, fortune and sacred honor? You you commit treason and publicly state:

    “In brief, a part of these colonies now feel, and all of them are sure of feeling, as far as the vengeance of administration can inflict them, the complicated calamities of fire, sword and famine. We are reduced to the alternative of chusing an unconditional submission to the tyranny of irritated ministers, or resistance by force. – The latter is our choice. – We have counted the cost of this contest, and find nothing so dreadful as voluntary slavery. – Honour, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them, if we basely entail hereditary bondage upon them.”?

    Why must you force people like me to pay for your religious beliefs similar to us to Hitler’s “sincere” belief that the Jews needed to be irradiated?

    I cannot be a part of ObamaCare AT ALL. I cannot pay for it or allow myself to sign forms that say I am subject to it it any way. I “cannot endure the infamy and guilt.” So why are you so desperate to force people like me to pay for your religion of “positive rights”?

  • Christopher

    And if you get such a system then I cannot be a part of it. Will you force your religion on me, Jim?

  • Christopher

    I just don’t want to PAY for your choices in women’s sexuality. I am willing to pay for my wife’s choices, but not yours. I will not pay for your trip to Florida or to buy you a gun so you can have your right to keep and bear arms either.

    I guess I am an oppressive bastard according to your religious belief?

    Talk about sad. Unless you believe that force and theft are not sad.

  • Christopher

    As pathetic as believing that Socialism works and is a good thing..

  • Christopher

    Great idea. My wife had a single payer system. I paid for it when she needed it. Just me.

    You can have the same single payer type of system. One person in your family can pay. If not and you still want to have sex then live with the consequences.

    You pay for what you do. I will pay for me and mine. Simple. No forms. No middle man. No Bureaucracy. No religious establish violations.

  • DKeane123

    I like your simplistic view of the world. Ann Rand would be proud of the everyone for themselves mentality.

  • Murmur1

    Perhaps the government could just issue contraceptive cards, similar to SNAP (food stamp) cards, and fund the purchase of contraceptives directly rather than through medical insurance.

    We already established during the Vietnam war era that people who refuse to pay their taxes because of moral objections to government actions are subject to legal consequences.