Earlier this summer, the Obama administration introduced an updated accommodation for religious nonprofits that want to opt out of providing comprehensive contraceptive coverage to employees. And, you know, I really thought it would satisfy religious groups that up to this point have shown themselves to be very reasonable about their demands. Like, I was almost 100 percent certain that organizations that believe birth control leads to "decreased emotional wellbeing and economic stability" for women and that Plan B One-Step is medically the same as abortion were going to mellow out eventually and accept the terms of the new healthcare law. So imagine my surprise when these same religious nonprofits proceeded with their lawsuits and maintained that any accommodation that allows women to access birth control is a violation of their religious conscience. I mean, I nearly fainted from shock.
Under the previous accommodation, religious nonprofits were required to fill out a form that would have triggered a third-party insurer to pay for and provide contraceptive coverage. The new policy lets these nonprofits directly notify the Department of Health and Human Services about their objections to the coverage, after which HHS will arrange for it. So instead of signing a form, these organizations are now writing a letter saying they really, really hate birth control and do not like it one bit. And instead of working with third-party insurers to secure the coverage, these groups just have to notify the government that they are mad about existing in a world where contraceptives exists and are legal to obtain.
But this is too much for the fragile sensibilities of, for example, Ave Maria University, a Catholic college that is currently suing the government over the accommodation. In its suit against the government, the school claims that “any action ‘specifically intended to prevent procreation’ — including contraception and sterilization — is morally wrong.” And as for the new accommodation, Ava Maria University believes that giving HHS "its insurance company’s name and contact information for the specific purpose of allowing HHS to issue a notice requiring the insurer to provide the exact same items through Ave Maria’s healthcare plan as if Ave Maria had given the insurer Form 700 directly.”
Translation: Any action -- any action at all -- that triggers contraceptive coverage for the school's employees is a no-go. Full stop.
This is precisely what Marty Lederman, a professor at Georgetown Law School, predicted earlier this year when he wrote that 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.
Ave Maria's objection to the new accommodation spells trouble for the birth control provision of the new healthcare law, as Ian Millhiser at ThinkProgress noted: "If the justices honor Ave Maria’s idiosyncratic objection, then it is unclear that the administration could design any accommodation that will survive contact with the Supreme Court."