NEW YORK (MainStreet) The ACA's contraception mandate has become a fire that the Obama administration just can't seem to put out.
The latest iteration of this debate comes from a proposed rule put out last Friday by the Department of Health and Human Services. In response to June's 5-4 decision in Hobby Lobby, the administration will allow for-profit companies an exception to the contraception mandate (allowing them to provide insurance plans that don't cover birth control). A company instead will have to file a form declaring a faith-based objection to the law. Once that's done, its employees will qualify for free birth control paid for and provided directly by the insurer.
Unfortunately for the administration, this probably won't make anyone any happier. How do we know? For starters, another version of this rule has already drawn a challenge.
This regulation is modeled after the existing accommodation for faith-based nonprofits, who generally don't like it. The Christian school Wheaton College has filed suit in the Supreme Court over enforcement of this provision, arguing that filling out the EBSA 700 form still "[makes] it complicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects." In other words, they still remain a but-for cause of birth control. Since both nonprofits and for-profits have objected to the contraception mandate on the same religious grounds, it's pretty unlikely that private companies will see things differently.
After all, recall that none of these groups have ever been forced to directly provide birth control. They object to a relationship which results in birth control, to being a link in the paper chain of sin as it were. Some also likely object to the fact that women can get contraception in the first place, and just now have a stage on which to argue. The fact that an EBSA 700 takes less than five minutes to complete misses the point. (It asks for only the group's name, registered address, relevant manager and someone's signature.) The symbolism of the act, as well as what it leads to, is in and of itself the sin.
What do these employers want instead? Something that they probably won't get. They want the same treatment that purely religious groups such as churches receive: the right to opt out of contraception on behalf of their employees altogether. The women wouldn't get birth control, but that's ultimately the point. As long as we use an employer health care model, the employer will always remain a triggering agent for contraception no matter how far removed. Even if the government waives the forms altogether, a female employee will still get birth control because of the employer's relationship with its insurance company.
Short of a single payer option, or forcing insurance companies to cover contraceptives for anyone who asks, there's simply no way around it.
How groups like Wheaton College anticipate that the government would sort out conscientious objectors from scofflaws without some sort of formal notification remains unaddressed and is perhaps not entirely irrelevant. Under those circumstances the mandate would be rendered effectively meaningless.
In the face of near-certain opposition, the administration's plan has the benefit of a near-blessing from the Supreme Court. In his Hobby Lobby opinion, Justice Samuel Alito indicated that the nonprofit accommodation could make a permissible alternative to mandating employer contraception. Traditionally this has been how the court throws the government a wink and a nod on difficult issues. Precedent bans the justices from explicitly ruling on cases not yet in front of them so, wanting to nip future lawsuits in the bud; they openly speculate on what a hypothetical solution might look like and obliquely invite Congress to follow.
However, this court has already seemed to go back on that word.
Less than a month after publishing its decision the court stayed enforcement of that same nonprofit scheme with a preliminary injunction in Wheaton v. Burwell. The justices may simply have wanted to take the most conservative approach possible before ruling on the issue next term, but it does seem to defeat the majority's implied approval of the notification form.
This inevitable objection, over which litigation has already begun, will come down to the same basic issue on which Hobby Lobby was decided: does filling out a form substantially burden the employer's free exercise of religion? The answer depends on how expansively you define substantial burden and reasonable accommodation. Employers want, essentially, a clean hands policy in which they take no action leading to contraception. Employees and the government argue that filling out a form stating your objection to the law is literally the very least an employer can do. If a woman then chooses to receive birth control through other channels, that's really none of their business.
Personally, I find the government's argument more compelling. We live in a society that balances a private right to faith against the public duty of even-handed governance, and trading an exemption from the law for formal notice of your objection seems like a strong win for the faithful. Having to know that other people are sinning doesn't burden the practice or expression of your faith, or, as the Court itself wrote in Town of Greece v. Galloway, "offense... does not equate to coercion... and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views."
On the other hand, this case won't come down to me. It won't even come down to most of the Supreme Court justices. Like virtually all decisions pitting money against workers or Conservatives against Liberals, this case will almost certainly split the Court down ideological lines and come down to Justice Anthony Kennedy and his expansive views on the first amendment. Could it get more complicated than that? Sure. Justice John Roberts has moved around occasionally, and Justice Alito did nod at this plan with approval.
Would I bet on it, though? Not even with your money.
--Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website www.wanderinglawyer.com.