Health Reform WK-EDGE High Court’s contraception compromise appears ‘unworkable’
Thursday, April 21, 2016

High Court’s contraception compromise appears ‘unworkable’

By Jenny Burke, J.D., M.S.

Has the U.S. government obligated itself to further accommodate the objections of religious non-profit organizations to the contraception coverage mandate in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148)? According to those leading the charge in the battle against the government regulations, the answer is yes. The government, however, is not willing to give in that easily, maintaining that the religious non-profits are claiming more in the name of religious liberty than the law actually allows, and that alternatives would make it more difficult for women to get the birth control provided for by the law.

High Court’s order. It seems that neither side has moved any closer to a compromise after oral arguments ended and the court issued an unusual order. The Court asked each party to propose a way for women to obtain cost-free birth control coverage without violating any religious beliefs by separating the religious non-profit hospitals, charities, and colleges from a health insurance plan that would be the source of contraceptives for the non-profits’ female employees and students. Each side filed initial briefs on April 12, 2016, and replied to those briefs with their final arguments on April 20.

Dispute. This isn’t the first time the Supreme Court has stepped into the contraception coverage debate (Burwell v. Hobby Lobby Stores, Inc., June 30, 2014; see Closely-held ‘corporate Christians’ win crusade against contraceptive coverage, July 2, 2014). When Congress passed the contraception mandate as part of the ACA, it required health plans to include preventive care for women, including contraception coverage and family planning services. The government provided an exemption from the contraceptive coverage mandate for religious employers, such as houses of worship and religious orders. It also provides an accommodation from the mandate for the health plans of religious colleges and universities, hospitals, social service agencies, and other such religious nonprofit organizations.

The government has made three attempts to create an acceptable accommodation for these organizations, but none of them have been deemed acceptable by the religious non-profits because they say the accommodation violates the Religious Freedom Restoration Act (RFRA). According to the accommodations, institutions with deeply held religious objections to providing contraception, sterilization, or abortifacient drugs must certify their views in writing by providing written notice to the government. This notice triggers the insurance companies to provide the contraceptive drugs (see High court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers, March 24, 2016).

Challenging brief. The non-profit religious organizations believe that the alternative offered by the federal government is inadequate because they must take a specific step to gain separation from the process of providing contraceptives. In their briefs, they proposed that the government allow insurance companies to offer separate insurance policies that cover only contraception. When religious employers do not purchase an all-inclusive health insurance plan, the insurance companies could contact female employees and offer the separate plan at no cost. According to the non-profits, the government’s response brief “just confirms that it really does want to hijack petitioners’ plans,” and the only approach that would protect their religious objections to contraceptives and thus to satisfy RFRA is by a “truly separate coverage.”

Government brief. The federal government, in its latest brief, described the religious challengers’ proposal to the court last week as “unworkable” and “profoundly flawed.” The government criticized the degree of separation that the non-profits had told the Court must be established for the mandate not to violate RFRA, explained the logistical difficulties of providing contraceptives-only insurance policies, and expressed doubt that any such policies are available in the insurance marketplace. It explained that the government had already considered other options during the rulemaking process of the ACA.

U.S. Solicitor General Donald Verrilli, Jr., argued that the government has already accommodated religious groups by requiring no more than an opt-out notice. In the brief, he stated that requiring women to accept or activate such coverage would create a “barrier to the delivery of preventive services.”

“That's actually pretty condescending,” Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, commented during a conference call. Women are perfectly capable of “picking up the phone” and calling insurers, he said.

Awaiting a decision. At any rate, SCOTUSblog’s Lyle Denniston believes a compromise is not forthcoming. He commented in his latest blog that, “When the first round of these briefs in reaction to the Court’s alternative suggestion, and the final round of briefs sent in on Wednesday, are laid side by side, there is considerably more difference than commonality between them. It thus is not clear that the initiative the Court took in introducing its own idea drew helpful reactions.”

Now both sides must wait for the Supreme Court to sort it out, determine whether an acceptable, legal compromise exists. A panel of eight Justices will make the final decision and many are hoping they can avoid a potential four to four split, left in place following the death of the ninth Supreme Court Justice, Antonin Scalia. A decision is expected in late June.

MainStory: TopStory NewsStory NewsFeed ContraceptionCoverageNews EmployerMandateNews DrugNews EssentialBenefitNews PreventiveCareNews

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