Will The Proposed Religious Accommodation to the Birth Control Benefit Stem The Flood of Litigation Challenging It?

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Will The Proposed Religious Accommodation to the Birth Control Benefit Stem The Flood of Litigation Challenging It?

Jessica Mason Pieklo

The Obama administration may be trying to stop the flood of litigation around the contraception benefit, but proposed changes to the religious exemption will likely do very little to do so.

Religious institutions have made it clear that they will not get on board with the birth control benefit in Obamacare no matter what, going so far as to flood federal courts with legal challenges that claim the benefit is unconstitutional. Despite that very clear message from the right, the Obama administration announced an amendment to the rules governing that benefit as a way to try and further accommodate concerns that providing insurance coverage for contraception and related reproductive health care services violates institutional religious rights. Now that the proposed additional accommodation has been released, what, if any, impact will this proposed change have on the over forty lawsuits that currently seek to block the benefit?

The answer: likely little.

When the birth control benefit was first created, the Obama administration exempted from compliance churches, synagogues, mosques and other institutions of worship whose sole function was to serve those who share their religious beliefs. Non-profit religiously affiliated institutions and for-profit businesses were not exempted. In response, representatives of literally every category of employer or organization affected by the accommodation sued, each claiming the benefit violated their rights and that the accommodation and safe harbor provision were insufficient. This proposed additional accommodation is a result of the administration trying to divert away at least a portion of those lawsuits, specifically those filed by non-profit religious hospitals, colleges and charities. These challenges appeared to concern the Obama administration the most, a reality it all but admits in its defense of those specific challenges.

In defending those suits the administration promised it would meet and try to work out a solution to those concerns. As a result of those assurances, many of those lawsuits have been dismissed or “paused” while the administration works out, presumably with these religiously-affiliated organizations, what this new accommodation will be. Last week’s announcement is the first step in that direction.

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Under an order issued by the D.C. Circuit Court, Obama administration officials have a duty to report, beginning next month, on how they are coming along in working out that final version of the accommodation. If the concerns of the religiously-affiliated institutions are taken at face value, than these categories of challenges should be dismissed as the exemption now swallows more of those organizations, but, at first blush, does so without compromising coverage for the employees and students at religiously-affiliated organizations.

Under the proposed rules, female employees of hospitals and charities and female employees and students of colleges qualifying for the exemption will have their own individual insurance policies guaranteeing no-fee access to all forms of birth control, pregnancy screening, and other “preventive” reproductive health services mandated for coverage under Obamacare. This should alleviate the administrative concerns for those organizations that contract out its coverage. But one of the areas of conflict surrounding the logistics of coverage involves those institutions with self-insured plans, and on this point the proposed change should also satisfy any purported concern about compliance. Here’s how it should work. If an employer has its own self-insured plan, the new rules provide for a separate insurance company to handle the coverage much like traditional employer-provided but not funded health plans, meaning those who claim a religious objection to providing coverage via a self-insured plan no longer have to worry about the self-insured plan providing that coverage. 

If the legal challenges by the non-profit organizations were grounded solely in legal disputes as opposed to political ones, then the administration’s proposed expanded accommodation should result in dismissal of a vast majority of those challenges since most, if not all, of those organizations should now qualify for the exemption. But, even if the new rules announced manage to quell the lawsuits by the non-profit organizations, they do not address in any way the challenges by profit-making companies owned by religious individuals or families.  These are different legal challenges filed by for-profit businesses like Hobby Lobby and others whose whose owners object for religious reasons to birth control methods or medications. There is nothing short of repealing Obamacare in its entirety that would stem the political/legal challenges from this group of plaintiffs.

And it is this category of challenges to the mandate, those filed by for-profit businesses that appears most likely to reach the Supreme Court, likely during the term that starts next October.  As more than one federal court judge has noted, the argument that these businesses have religious rights that are infringed by providing contraceptive benefits goes against nearly every precept of corporate entity law that establishes clear distinctions between individual personhood and an owner’s identity and corporate personhood and identity. The question that has equality advocates concerned is whether the Roberts Court will be willing to overlook centuries of corporate entity law in favor of expanding its corporate constitutional rights legacy beyond the damage of Citizens United.