News Law and Policy

Obama Administration’s Latest Birth Control ‘Fix’ Rejected by Opponents

Jessica Mason Pieklo

Challengers claim the administration's latest attempts to accommodate religious objections to covering birth control "change nothing."

Read more of our coverage on challenges to the Affordable Care Act’s birth control benefit here.

Challengers to the Obama administration’s latest attempt to accommodate the objections to the contraception coverage requirement of the Affordable Care Act announced Monday they were pressing ahead with their legal challenges to the rule.

At last count last week there were 65 cases filed by nonprofits, with over 40 of those still pending in the federal courts.

In a brief filed with the U.S. Tenth Circuit Court of Appeals, the Little Sisters of the Poor—one of the named plaintiffs in the cases—stated that the administration’s latest interim rules, which allows those claiming a religious objection to comply with the coverage requirement as an alternative route to notify the administration of their objection, “changes nothing of the substance” of its claim that the accommodation violates its religious rights.

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According to its brief, the only way the administration can accommodate its religious objections is to treat the organization—which runs a group of assisted living facilities—as though it were a house of worship and exempt it entirely from complying with the rule.

That’s because, as the challengers claim, any accommodation by the administration facilitates birth control access for its employees or students.

But as the Obama administration spelled out in its brief to the Tenth Circuit, the latest interim rules ultimately accomplish what the challengers ask.

That’s because the administration “effectively exempt[s]” the objecting organizations from doing anything to participate in contraception coverage beyond notifying the administration of its objection and plan information. Once that happens, the administration takes on the task of notifying the insurance company, which then proceeds with contacting those employees or students who need contraception coverage.

The key difference, according to the administration, is that the accommodation ensures employees and students who need contraception coverage can still access it.

The challengers and the administration filed this latest round of legal briefs with the Tenth Circuit after the U.S. Supreme Court issued an interim order earlier this summer in the Wheaton College case. That order exempted the evangelical college from complying with the process under the Affordable Care Act (ACA) of requesting an exemption to the birth control benefit.

The Supreme Court issued the Wheaton College interim order just days after it ruled in Hobby Lobby v. Burwell that some for-profit companies could raise religious objections to the ACA’s contraception coverage requirement.

The Roberts Court interim order in Wheaton College threw into question whether or not the Obama administration’s process for accommodating those institutions—like the Little Sisters of the Poor—that have a religious affiliation but are not houses of worship, offer services and have employees that cover a broad spectrum of beliefs.

In its brief filed Monday with the Tenth Circuit, the Obama administration claims the interim final rules comply with the Wheaton College order and should resolve the legal challenges. The challengers disagree, which leaves the issue for the Tenth Circuit to resolve.

Monday’s briefing crystallizes the argument taking shape in the nonprofit challenges to the coverage requirement that could ultimately land before the Roberts Court as early as this term: Can these companies prevent the administration from providing contraception coverage for their employees and students?

It’s a question that has significance beyond the legal challenges filed by religiously affiliated nonprofits. After the summer’s victory in Hobby Lobby, those representing for-profit companies challenging the rule have been silent as to whether they will argue that the accommodation also violates their religious rights.

The Obama administration will file similar briefing with the D.C. Circuit Court of Appeals next week in the Priests for Life case, another set of legal challenges to the contraception coverage requirement filed by religiously affiliated nonprofits.

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