The day after the Hobby Lobby decision I wrote this diary in an effort to explore the options left to the administration for implementation the ACA mandated coverage for contraceptive care.
The Obama administration, reeling from back-to-back blows from the Supreme Court this week, is weighing options that would provide contraceptive coverage to thousands of women who are about to lose it or never had it because of their employers’ religious objections.The requirement to specifically mandate contraceptive services as necessary preventive care was originally an administrative regulation. The original regulation provided an exemption for church corporations even before they asked for it. Objections were then raised by other non-profit religiously oriented corporations such as church affiliated service organizations. The Obama administration then crafted a compromise for the other nonprofits. A form was devised which they could submit to their health insurance carrier or plan administrator in the case of self insured plans saying that they had religious objections to paying for such coverage. The insurance carrier or third party administrator would then be required to give then a reduction in their total premium but still provide the coverage to employees without cost. In essence they would be footing the bill for that specific piece of the total health care coverage.
The administration must move fast. Legal and health care experts expect a rush to court involving scores of employers seeking to take advantage of the two decisions, one involving Hobby Lobby Stores, which affects for-profit businesses, and the other on Wheaton College that concerns religiously affiliated nonprofit groups. About 100 cases are pending.
One proposal the White House is studying would put companies’ insurers or health plan administrators on the spot for contraceptive coverage, with details of reimbursement to be worked out later.
The Hobby Lobby decision found that closely held for profit corporations had a right to the same religious accommodation under the requirements of the Religious Freedom Restoration Act. The decisions suggested that the administration could use the same approach for this new group of corporations as it had for the nonprofit corporations. The cleanest and most decisive approach to getting rid of this decision would be for congress to repeal or modify the RFRA. The political prospects of that happening are not very promising.
The problem that has already arisen for the administration's original accommodation for the nonprofits is that it has not been enough to satisfy some of them. Those corporations claim that the act of completing and submitting form 700 would make them morally complicit in the provision of services to which they have religious objections. On Thursday the court majority stepped into that litigation by issuing a temporary order in the case of Wheaton College. They proceeded to craft a new regulation for HHS allowing Wheaton to bypass form 700 and write directly to HHS. HHS would then have the burden of working out arrangements with the insurance carrier. Even though this order is temporary it makes it clear that the court majority considers it within their power to micro manage the implementation of the ACA. Such an order coming from SCOTUS is likely to have an influence on the actions of the lower courts.
Yet officials are struggling to make sense of a sunny sentence in the court’s order on Thursday exempting Wheaton from the opt-out form. “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of F.D.A.-approved contraceptives,” the majority said in the unsigned opinion.At this point it seems that any arrangements that the Obama administration might construct to accommodate the nonprofit corporations and the additional for profit corporations that have now been added to the pool is potentially subject to intervention by the court. This is one of several important issues that Justice Sotomayor raised in her dissent to the Wheaton order.
It said Wheaton could merely notify the government of its religious objections in writing rather than send the opt-out form to its coverage providers.
The difference sounds trivial. But it could create quite a roadblock for the Department of Health and Human Services, Justice Sotomayor wrote in dissent. “Does the court intend for H.H.S. to rely on the filing of lawsuits by every entity claiming an exemption?” she asked. She questioned whether the government was supposed to create “a database that tracks every employer’s insurer or third-party administrator nationwide.”
As the number of employers taking advantage of any available religious accommodations grows so do the economic implications of expecting private insurers to pick up the cost. It really doesn't take a lot of imagination to envision them filing suits in protection of their financial interests. They would definitely have potentially convincing legal claims that could be made. That raises the possibility of creating a program for the federal government to directly cover this form of coverage. Not only does this raise administrative difficulties but it would require action and appropriations from a gridlocked congress.
There is no question that this hot button issue will play a major role in the campaigns for this fall's elections. How the administration responds to the mess that has been dumped into their lap over the next four months will be the focus of much attention.