A Hobby Lobby Patch For Obamacare

by Dish Staff

On Friday, the Obama administration proposed a fix to the ACA’s contraceptive mandate that it hopes will render the effects of the Hobby Lobby ruling moot by providing a way for employees of closely-held corporations with religious objections to the mandate to obtain contraception coverage. Sarah Kliff outlines the new rule, on which the administration is now seeking comment:

The Obama administration wants to extend the accommodation for religious non-profits — where the health insurance plan, rather than the employer, foots the bill for birth control — to objecting for-profit organizations. At a company like Hobby Lobby, for example, this would mean that the owners would notify the government of their objection to contraceptives. The Obama administration would then pass that information along to Hobby Lobby’s health insurance plan, which would be responsible for paying for the birth control coverage. …

The White House will also give more leeway to religious non-profits, like hospitals and colleges, that do not want to comply with the contraceptive mandate. These non-profits will no longer be required to notify their health plan that they will not provide contraceptives, as preliminary regulations would have required. Instead, these employers will now only be required to notify the federal government of their objection and the government will have the responsibility of notifying the insurance plan.

But religious organizations that object to the mandate in and of itself are not satisfied:

“Here we go again,” said Russell Moore, president of the policy arm of the Southern Baptist Convention, the largest U.S. Protestant denomination. “What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn’t get at the primary problem.”

The U.S. Conference of Catholic Bishops said it’s worried that the administration’s proposal could limit which for-profit businesses can receive a religious exemption. “By proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” the group’s statement read.

Charles Pierce expected as much:

After all, the opposition to birth control is not based on the opposition to a government mandate. It’s based on the opposition to the medicine, and the purpose that medicine serves. The question being litigated — in public and, sadly, in the courts — is not constitutional. It’s theological. The essential text is not the Constitution. It’s Humanae Vitae.

Scrutinizing how this rule change will adjust the terms of the debate over the mandate, Marty Lederman argues that the religious objectors have few legal legs left to stand on:

The regulation does not require the organizations to contract with an issuer or a TPA–and if they do not do so, then the government currently has no way of ensuring contraceptive coverage for their employees.  But even if that were not the case–i.e., even if federal law coerced the organizations to contract with such an issuer or TPA–Thomas Aquinas College and the other plaintiffs haven’t offered any explanation for why, according to their religion, the College’s responsibility for this particular match between TPA and employees would render the College itself morally responsible for the employees’ eventual use of contraceptives, when (i) such employees would have the same coverage if Aquinas had contracted with a different TPA; (ii) such employees would continue to have coverage if they left the College; and (iii) the College itself does not provide, subsidize, endorse, distribute, or otherwise facilitate the provision of, its employees’ contraceptive services.

Be that as it may, it appears that this will now be the primary (if not the only) argument the courts will have to contend with in light of the government’s newly augmented accommodation.

And Jonathan Cohn wonders what the Supreme Court will make of it:

With Hobby Lobby, the justices implied strongly that the old workaroundthe one the Administration was already providing churches and the likewas acceptable. With Wheaton, the Court said that, no, asking employers to write a letter to insurers infringed upon their religious freeom. That’s what made Justice Sonya Sotomayor and two of her colleagues angry enough to write a blistering dissent: The second directive seemed to undermine the spirit of the first. With this new regulation, the Administration is basically calling the Court’s bluff, as Ian Millhiser puts it at ThinkProgressto force the Court, once and for all, to decide whether any workaround passes muster or if the contraception requirement itself is simply unacceptable.