Legal Scholars, Reproductive Health Advocates Comment on Exemptions to Birth Control Benefit

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Legal Scholars, Reproductive Health Advocates Comment on Exemptions to Birth Control Benefit

Jessica Mason Pieklo

The administration sought comments on how to define a closely held for-profit company and whether other reporting or enforcement steps might be appropriate to implement an exemption to the birth control benefit.

The commenting period on a proposed expansion of the Affordable Care Act’s accommodation to the contraception coverage benefit for religious objectors closed Tuesday, leaving the Obama administration to the task of deciding what kind of companies can avoid covering contraception for their employees.

The proposed expansion is a result of the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby that ruled some types of closely-held corporations can raise religious objections to providing contraception coverage in their employee health insurance plans.

The Roberts Court in that decision failed to define “closely held corporation” and no single, uniform definition of a closely held corporation exists under current law. That prompted the Department of Health and Human Services (HHS) to solicit comments from the public to help define the scope of this latest accommodation.

The administration sought comments on how to define a closely held for-profit company and whether other reporting or enforcement steps might be appropriate to implement an exemption to the birth control benefit.

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Among those who offered comments on the scope of the proposed accommodation were more than 40 corporate law scholars who strongly urged the administration to restrict the for-profit entities eligible for a religious exemption to entities of a limited size, in some cases no more than 30 equity members, that can provide evidence of religious mission and whose owners unanimously agree to seek the accommodation.

More than 20 law and religion scholars warned HHS and the U.S. Department of Labor that the Obama administration could be vulnerable to lawsuits if it does not create stringent monitoring and enforcement procedures that ensure seamless access to contraception for women whose health insurance is provided by employers who seek exemptions to the ACA’s contraception benefit.

Reproductive health and rights advocates such as the National Family Planning & Reproductive Health Association and the Planned Parenthood Federation of America submitted comments to guide the administration’s deliberation process. Many of the comments from NFPRHA track the law professors recommendations, including calls for tracking and enforcement mechanisms, as well as a requirement that companies seeking the exemption refile on an annual basis.

While the administration crafts its proposed rule for accommodating religious objections of closely held corporations, the next question is whether or not those that have filed lawsuits challenging the contraception rule will accept whatever proposal the Obama administration comes up with.

So far at least 12 cases have settled or are on the verge of settling. In those cases where the parties have indicated they are close but not quite settled, the sticking point appears to be a disagreement between the parties as to whether an injunction would apply only to the contraception rule before Hobby Lobby v. Burwell, or whether it would also permanently bar the for-profit legal challengers from refiling claims challenging whatever accommodation process the administration crafts for closely held corporations.

Among those for-profit challenges that have not yet settled: Hobby Lobby.

The administration’s accommodation woes continue on the religiously affiliated nonprofit front as well. In light of the Roberts Court’s Wheaton College order that called into question the accommodation process for religiously affiliated nonprofits, the Obama administration announced this summer a tweak to that process, seeking comments from the public before making their proposal.

The religiously affiliated nonprofits challenging the accommodation have indicated the administration’s latest offer will not be sufficient and that they will likely continue with their litigation regardless of what accommodation the administration ultimately releases.

Those religious groups include the University of Notre Dame, Priests for Life, and Little Sisters of the Poor, all of whom argue that the very act of participating in the health-care coverage requirement is an act facilitating sin.

The question of the sufficiency of the administration’s accommodation process could land before the Roberts Court yet this term.

The University of Notre Dame has a current request pending before the Supreme Court, and the Obama administration’s brief in response is due November 4. Meanwhile the Fifth, Seventh, Tenth, and Third Circuit courts of appeals all have challenges to the accommodation process for religiously affiliated nonprofits pending with arguments in those cases.