The Washington Post

In response to court ruling, administration works to ensure contraceptive coverage

The Obama administration is working to on a new plan to ensure contraception coverage in response to a recent Supreme Court order questioning the government’s process for allowing nonprofits to opt out of the mandated birth control coverage. (Pablo Martinez Monsivais/AP)

The Obama administration said Tuesday that it is coming up with a work-around to ensure that employees of certain charities, hospitals and colleges whose leaders have religious objections to contraceptives can still get birth control through their employee health insurance plans.

The administration made its plans known in a legal brief filed with the U.S. Court of Appeals for the 10th Circuit in Denver. The alternative plan, which is still being developed, is in response to a recent Supreme Court order questioning the government’s current process for allowing nonprofit organizations to opt out of a requirement that their health plans cover all contraceptives that have been approved by the Food and Drug Administration.

The current process involves asking nonprofits to fill out a form directing a third party to provide the contraceptive coverage. But many organizations had argued that filling out the form, in itself, violated their religious beliefs.

Earlier this month, the Supreme Court sided with one objecting nonprofit, Wheaton College in Illinois. A majority of the court said the college did not have to sign the form but could simply inform the Obama administration of its religious objections. That decision was sharply criticized by the court’s three female justices.

On Tuesday, administration officials suggested that the new process will not replace the old but will rather be added as a second way for nonprofit groups to opt out. Federal agencies “intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification,” a senior administration official said. The official added that the new accommodation will be available “within a month.”

The continuing legal struggles showed that the court’s prominent decision June 30 involving arts-and-crafts chain Hobby Lobby was not the last word in the contentious roll-out of the health-care law’s contraception mandate.

In addition to the Wheaton College decision, the court has sent back for reconsideration by lower courts cases that involved companies whose owners say their religious beliefs do not allow them to offer any contraceptives.

The Wheaton College case comes down largely to paperwork.

Under a compromise the Obama administration offered to religious organizations such as charities, hospitals and colleges, the school was required to fill out a form, EBSA Form 700, to register its religious objections. This enables insurers or third-party administrators to take on the responsibility of paying for the birth control. The organizations do not have to pay for the coverage, and the cost is borne by the government or in other ways.

But some of the colleges and organizations say that signing the form authorizes the third parties to provide the contraceptive coverage and makes the religious organizations complicit in actions that offend their religious beliefs.

A majority of the court in an unsigned opinion issued July 3 said Wheaton need only file a letter with the federal government stating the college’s religious objections. Presumably, the government then would notify the third party to provide the contraceptives.

“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the order said.

The court’s three female justices objected to the court’s action, saying the majority only days before in the Hobby Lobby decision had called the form offered to the organizations an example of how the administration could accommodate objections from businesses whose owners had religious objections to offering some contraceptives.

In ruling that the Religious Freedom Restoration Act protected two family-owned companies — Hobby Lobby and a Pennsylvania cabinetmaking firm called Conestoga Wood Specialties, Justice Samuel A. Alito Jr. said the compromise form “achieves all of the government’s aims while providing greater respect for religious liberty.”

When the court then relieved Wheaton from having to sign the form, Justice Sonia Sotomayor basically accused her colleagues of a bait-and-switch.

She said the order, coming only days after the Hobby Lobby decision, “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”

Sandhya Somashekhar is the social change reporter for the Washington Post.
Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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