Tuesday, July 29, 2014

Alito gave Obama some advice on guaranteeing contraceptive coverage

Justice Alito's 49-page opinion mostly focuses on why Obamacare's birth control mandate, as written, violates the Religious Freedom Restoration Act. But it also includes some guideposts on how to tweak the law in a way the Supreme Court would deem acceptable.

Alito suggests that the Obama administration could take a play from its own handbook and could extend an "accommodation" offered to religiously-affiliated employers like universities and hospitals to a large number of private companies.

Some background is helpful here: The Obama administration has already extended an "accommodation" to religious nonprofits — like hospitals and universities with religious affiliations — to bridge the divide created by the contraceptive mandate. The way the accommodation works is by requiring the insurer to provide birth control, without passing that cost on to the company. Insurers recoup their losses through reduced fees to the government. There are some regulatory hurdles here, but they are ones that the Obama administration has already grappled with in laying the ground rules for how the accommodation works.

Justice Alito proposes using the accommodation as a fix on page five of his opinion:

[The government] could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs' religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS's stated interests.

Religious nonprofits have brought suit against the federal government, alleging that the accommodation still infringes upon their religious beliefs. Though today's Supreme Court opinion doesn't decide those cases, Alito's statement that the accommodation wouldn't be an imposition upon Hobby Lobby doesn't bode well for those groups.

"It looks like they're saying the religious accommodation is going to be acceptable," says Timothy Jost, a professor of law at Washington and Lee University.

If the administration decides to pursue this fix, it could happen pretty quickly. By extending the accommodation to for-profit corporations through an "interim final regulation" or as "regulatory guidance", it could be implemented in a matter of weeks — or even days, Jost says.

Supporters of the contraceptive mandate don't necessarily think that the accommodation is an appropriate fix, though.

"In our view, it does not answer the question for two reasons," says Marcia Greenberger, co-president at the National Women's Law Center. "First of all, it is completely inappropriate and unacceptable for women to be expected to look to some special out of the usual way of accommodating what is a core and basic health care need. Secondly, as a practical matter, this accommodation system has not been in operation long enough to know how it would work. It was never set up to apply on as broad a basis as this court decision may be calling upon it to have to fill in the gaps."

In a briefing Monday afternoon, Press Secretary Josh Earnest emphasized that the President is eager to work with Congress to repair access to contraceptives.

"Congress should act to address the concerns of women affected by this Supreme Court decision," Earnest said. When pressed about whether the administration would seek to extend the accommodation, he added, "We'll consider whether there's an opportunity for the president to take some action that could mitigate this problem."

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