Now that the Supreme Court has concluded that the so-called contraception mandate impermissibly burdens the religious liberty of objecting employers under the Religious Freedom Restoration Act (RFRA) the Obama Administration and Congress must decide how to respond.
Because the Court’s decision rested on RFRA, Congress has the power to overrule the decision. Thus Congress could amend the PPACA to impose the contraception mandate directly or it could enact an RFRA exemption for some or all of the Act. Congress could also enact a new program to fund contraception for employees of objecting employers, or even all employers if Congress is wary of subsidizing a subset of religiously oriented companies. Congress could do all these things, and more, but that would require that a statute pass both the House and Senate and make it to the president’s desk — and that’s unlikely. While Senate Democrats have promised quick action, I doubt we’ll see new legislation on this issue this year.
So if we assume Congress is not likely to act, what can the administration do on its own? The easiest and most rapid response would be for the Department of Health and Human Services (HHS) to provide objecting for-profit employers with the same accommodation offered to religious institutions. Indeed, the very existence of this accommodation undermined the administration’s position before the Supreme Court, as it was hard to simultaneously argue that there was no less restrictive way to provide access to contraception while providing just such an alternative to religious institutions. Expanding the accommodation would be relatively easy, and could be done quickly through an interim final regulation.
The accommodation offered to religious institutions shifts the obligation to pay for contraception coverage from the employer to the insurer. This may well satisfy many objecting employers, but it might not work for all of them. First, some employers self-insure, making insurer and employer one and the same. Second, some Catholic institutions object to the accommodation because it requires them to sign a form and interact with the insurer to facilitate the required contraception coverage. Several cases challenging the accommodation on these grounds remain pending, including one filed by the Little Sisters of the Poor and another by the University of Notre Dame. Justice Kennedy’s concurrence may suggest he would reject such claims, but we’ll have to see. Indeed, just today the U.S. Court of Appeals for the Eleventh Circuit enjoined enforcement of the mandate, even with the accommodation, in Eternal Word Television Network v. HHS. In a concurring opinion, Judge William Pryor explained why he expected EWTN’s claims to prevail on the merits.
Even were the current accommodation to face trouble in Court, it might be salvagable with minor tweaks. As suggested in Judge Pryor’s opinion, HHS might be able to alter the relevant form and reporting requirements in such a way as to eliminate the objecting employers’ concerns. For example, HHS might require objecting employers to provide notice to the federal government, and then HHS could interface with the insurer or otherwise facilitate the coverage. Much as religious employers have no meaningful RFRA objection to the expenditure of tax dollars for things that contravene their religious faith, it might be hard to challenge this sort of reform.
A more direct way to enhance contraception coverage would be for the federal government to provide such coverage directly. Yet while Congress could authorize such a program, it is not clear that HHS has the authority to take this step on its own. I am not aware of any provision in the PPACA or other law that would authorize appropriations for this purpose. Of course, were HHS to try and take such a step unilaterally, it’s not clear who would have standing to challenge the move.
A final step the administration could take would be to enhance access to contraception by making all forms of oral contraception available over-the-counter without a prescription (and not just “Plan B”). While this would not make contraception “free” it would reduce the cost, and help alleviate some of the non-monetary obstacles women face. As Adrianna McIntyre notes, cost is hardly the only (or even the largest) obstacle working women face when it comes to obtaining contraception. Making oral contraception available OTC might not help the 3-4 percent of women who use IUDs, but it would nonetheless expand access to contraception as a practical matter, particularly for the working poor. It also has the support of some prominent conservatives and would largely eliminate the cultural conflict engendered by the mandate.
While the Hobby Lobby decision has inflamed ideological passions, it’s not clear drug makers see the decision as all that significant. As Reuters reports, the decision does not appear to have had any effect on the contraception makers’ stock prices. Perhaps this is because most women have the same (or greater) access to contraception today than they did in 2010, when the PPACA was enacted, and this is unlikely to change.