The Obama administration on Friday announced its new accommodation for religious nonprofits that want to opt-out of providing comprehensive contraceptive coverage to employees. For those who haven't been following along, what the administration introduced is an accommodation to an already existing accommodation that was deemed insufficiently accommodating by religious nonprofits.
The previous accommodation required religious nonprofits to fill out a form that would have triggered a third-party insurer to pay for and provide the coverage. The new policy allows these nonprofits to directly notify the Department of Health and Human Services of their objections to the coverage, and HHS will then arrange for it. So instead of signing a form, these organizations are now writing a letter. And instead of working with third-party insurers, these groups are just notifying the government.
While it's encouraging to see the administration working to find ways to appease religious objections and ensure all employees can access basic healthcare, the new accommodation may not resolve the issue or prevent future lawsuits. After all, the final outcome of the new policy is still, at least in theory, exactly the same: People accessing birth control.
The organizations that sued over the previous accommodation, like Wheaton College and the Little Sisters of the Poor, made clear that the issue was what they viewed as complicity in providing birth control. So it's hard to see how the new accommodation will placate them if the net effect remains the same. Now I'm not the betting type, but I'd wager that these organizations will press on with their lawsuits. Though I am not a legal scholar, of course.
But Marty Lederman, a professor at Georgetown Law School, is a legal scholar, and he doesn't seem too rosy about the new accommodation to the accommodation, either. As Irin Carmon pointed out at MSNBC, Lederman wrote back in July that he thought it was "likely that most of those organizations will not be satisfied" by the so-called fix the administration rolled out today:
They will argue that such a “fix,” too, violates their rights under RFRA, because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage. If I’m right about that, and if the government cannot come up with an alternative regulatory solution that is satisfactory to all parties, then the courts will have little choice but to continue adjudicating the applicability of RFRA to the government’s “accommodation.” The first set of such cases—many already pending—will involve nonprofit organizations currently eligible for the accommodation.
But the government is also likely to extend the accommodation to at least some for-profit employers with religious objections, as the Court suggested it could and should do in the Hobby Lobby decision. Many of those for-profit employers may accept the accommodation. Almost certainly, however, some will not—which will mean that the nonprofit cases challenging the accommodation will soon be joined by similar challenges from for-profit companies.
The administration is still working to develop a permanent fix for closely-held corporations, which, in the wake of the Supreme Court's Hobby Lobby ruling, can also opt-out of this coverage. This hasn't escaped the notice of major reproductive rights groups.
"The revised accommodation has no impact on for-profit corporations like Hobby Lobby that are now allowed to deny birth control coverage to their employees," Planned Parenthood Action Fund president Cecile Richards said in a statement. "Women who work at corporations like Hobby Lobby can still be denied birth control coverage, and we are glad to see that the Administration is proposing ways to ensure that these women can get no-co-pay birth control.
“Once again, we’re reminded of the great lengths opponents are willing to go to put barriers between women and their birth control. While the Obama Administration is working hard to protect women's access to birth control in the face of harmful Supreme Court decisions, today's notice also serves as a stark reminder of what is at stake for women in this country when it comes to affordable basic health care."