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Obama Administration Says It’s Revising Birth Control Benefit Accommodation

Jessica Mason Pieklo

The administration has announced it is revising the process for religiously affiliated nonprofits to opt out of providing insurance plans that cover birth control for their employees.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

The Obama administration has announced it is revising the accommodation to the contraception benefit in the Affordable Care Act available to religiously affiliated nonprofits.

The statement was made in a legal brief filed by the Department of Justice with the United States Court of Appeals for the Tenth Circuit as part of a series of cases filed by groups like the Little Sisters of the Poor, which argue that complying with the accommodation process set out by the administration is itself a burden on their religious rights and a violation of the Religious Freedom Restoration Act (RFRA). The current process requires qualifying religious organizationsto complete a form notifying the administration that they object to providing health insurance plans that offer coverage for contraception. Once that form is completed and filed with the administration, a third-party insurance administrator steps in to provide the insurance coverage for those employees or students who want it.

But at the beginning of July, the Roberts Court threw that accommodation into question by issuing a temporary order that allowed Wheaton College—an evangelical Christian college in Illinois that’s challenging the accommodation—to both avoid providing insurance plans that include birth control coverage and complying with the accommodation process. While that order was not a final ruling on the merits of the accommodation, its effect can be seen in the other pending challenges, like the Little Sisters of the Poor and the administration’s statement that it will be making further adjustments to that process.

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“The Wheaton College injunction does not reflect a final Supreme Court determination that RFRA requires the government to apply the accommodations in this manner,” the administration wrote in its brief. “Nevertheless, the Departments responsible for implementing the accommodations have informed us that they have determined to augment the regulatory accommodation process in light of the Wheaton College injunction and that they plan to issue interim final rules within a month. We will inform the Court when the rules are issued.”

When completed, those rules will reportedly provide an alternative way for an objecting religious nonprofit to notify the administration of its objection.

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