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April 13 — The Obama administration April 12 seemed resistant to a potential compromise proposed by the Supreme Court in a long-running dispute over cost-free contraceptive coverage.
In a supplemental brief, the government said there might be a way for employees of nonprofit religious groups to obtain contraceptive coverage from the issuers of their fully insured employee health plans without requiring their employers' involvement, but “only at a real cost to” the coverage requirement's “effective implementation.”
The existing accommodation for objecting employers with insured plans already has all of the features proposed by the Supreme Court in a March 29 order that asked the parties file supplemental briefs in the case, the government said. Therefore, there is no need to adjust the accommodation, it said.
The high court March 23 heard oral argument in the case, which will determine whether the government may, consistent with the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, require nonprofit religious organizations to participate in the Affordable Care Act's cost-free contraceptive coverage requirement through an accommodation that mandates they notify the government or their insurer of their objections in order to be relieved of directly providing or paying for the coverage.
Currently, the employers must tell the Department of Health and Human Services in writing of their objections or send a form to their insurers telling them of the objections in order to opt out of including the coverage in their plans.
The government argued that, under this scheme, the objecting groups have no legal obligation to provide or pay for contraceptive coverage. Instead, the groups' insurers are obliged to notify the employees that the insurers will provide the coverage, and that their employees won't pay for or provide the coverage through the employers' health plans.
In an order of a type that none of the attorneys familiar with the case said they had ever seen, the court asked the parties to address “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners” (61 HCDR, 3/30/16).
For example, “the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds,” the court said. The religious groups “would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.”
“At the same time,” the court wrote, a group's “insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”
Attorneys for the groups, including the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, said the court's proposal was consistent with what they've been saying all along.
“Yes,” the groups wrote. “There are many ways” for their employees to receive cost-free contraceptive coverage through the same insurer that issued the employee plans without any involvement by the employers.
So long as the coverage is “truly separate” from the employer plan—i.e., it is provided through a separate policy, with a separate enrollment process, a separate insurance card and a separate payment source, and it is offered to the employees through a notification that doesn't come from the employer, then the objecting groups's concerns would be fully addressed, they said.
“There is no reason for the government to insist, on pain of massive penalties, that petitioners abandon their sincerely held religious beliefs when the government can achieve its ends through other means,” such as allowing insurers to offer contraceptive coverage-only plans, the groups said.
And, while both the government and the groups recognized that the court's proposal was directed only at fully insured commercial plans, the groups said similar alternatives would work for self-insured or self-insured church plans. Employees of groups that self-insure or use church plans, which the groups say the government has conceded it can't force to provide the coverage, “could enroll in contraceptive-only insurance policies.”
“Don't be fooled” by the groups' brief, Brigitte Amiri, senior staff attorney at the ACLU’s Reproductive Freedom Project, said during an April 13 teleconference jointly held by the American Civil Liberties Union and the National Women's Law Center. The groups have rewritten the court's example to fit the what they've been saying all along, she said. This is an “old” idea “dressed up in new clothing,” she said.
The government wants contraceptive coverage to be seamless—that is, that women won't be required to “jump through unnecessary hoops” to obtain the coverage, Amiri said. That's not possible under this proposal.
Forcing individuals into contraceptive-only plans is an “unworkable” option, NWLC's Gretchen Borchelt, the group's vice president for reproductive rights and health, added. This scheme separates contraception from other women's health needs and, further, requires employees to opt into the coverage—a move that itself may present an “absolute barrier” to obtaining the needed coverage, she said.
Borchelt added that, currently, there is no such thing as a contraceptive-only plan, and there are state and federal provisions that could bar insurers from offering such plans. That idea was challenged by Mark Rienzi, senior counsel of the Becket Fund, who spoke during a separate teleconference April 13.
Rienzi said he knows of several contraceptive-only plans. In fact, he said, the government could offer an opt-in for contraceptive coverage similar to Medicare Part D, where individuals need only apply for prescription coverage. The application has nothing to do with the identity of the individual or the individual's employer. It's a “consensus where everybody wins,” he said.
By raising its proposal, the court created a “clear path to consensus,” Rienzi said. “The government really just needs to take ‘yes' for an answer.”
Rienzi said the government and its supporters have mischaracterized the groups' arguments. They are contending that employers like the Little Sisters will “never be satisfied” so long as there's some plan that allows their employees access to contraceptives. It's like a “cartoon” illustration in which a nun stands in front of a pharmacy barring the door, he said.
That hasn't ever been what this case is about, Rienzi said. The government is free to take measures to ensure coverage of contraceptives. All the groups have ever wanted is to be taken out of the equation, he said. The Little Sisters have said all along that they can't be involved in paying for or providing access to these products, he said. There are ways to ensure employees get that coverage without involving them.
Rienzi noted that employees will know if they're receiving the coverage through their insurance plans, and could have the option of acquiring supplemental plans if not. In addition, insurers and the government (as a result of individual mandate reporting obligations) know the names of people insured under plans issued to the nonprofit groups. Either could notify employees of their options for obtaining the coverage if they want it, he said.
Borchelt said real-world examples, gleaned from stories told by individuals whose employers are truly exempt from the contraceptive mandate, demonstrate it's not that simple to get cost-free coverage for contraceptives. First, she said, there are no contraceptive-only plans currently in existence and, second, the creation of such plans would be contrary to the government's goal, which is to ensure seamless coverage.
Taking contraceptive care out of basic coverage raises several other issues, Amiri added. For example, she said, who gets to decide when the coverage will be separated out, so that employees have to affirmatively opt in, as opposed to the coverage being included by default? Will employees only be permitted to opt in (or out) during open enrollment periods? And, who controls the opt-in—a husband, parent or someone other than the person seeking the coverage?
The separate policy proposal “is problematic in terms of access,” Amiri said.
Amiri said the government argued in its brief that it has “bent over backwards” to accommodate the religious nonprofit groups and that it really wants to find an accommodation that will satisfy everyone. Although it fully defended the current accommodation, she said, the government told the court that it was willing to “tinker” with the notification mechanism if that would satisfy the court's concerns.
Rienzi said it's apparent from the court's March 29 order that the justices are “listening carefully” to the groups' concerns and they're taking the religious liberty arguments seriously.
Reply briefs are due April 20. The court is expected to reach a decision by the end of June.
Noel J. Francisco, David T. Raimer and Anthony J. Dick, of Jones Day, Washington; Paul M. Pohl, John D. Goetz, Leon F. DeJulius Jr. and Ira M. Karoll, of Jones Day, Pittsburgh; Matthew A. Kairis, of Jones Day, Columbus, Ohio; Paul D. Clement, Erin E. Murphy and Robert M. Bernstein, of Bancroft PLLC, Washington; David A. Cortman, Gregory S. Baylor, Jordan W. Lorence, Kevin H. Theriot, Matthew S. Bowman and Rory T. Gray, of Alliance Defending Freedom, Washington; Robert J. Muise and David Yerushalmi, of American Freedom Law Center, Ann Arbor, Mich.; Bradley S. Tupi, Pittsburgh; Carl C. Scherz and Laurence A. Hansen, of Locke Lord LLP, Dallas; Kevin C. Walsh, Richmond; Mark Rienzi, Eric C. Rassbach, Hannah C. Smith, Diana M. Verm, Adele Auxier Keim and Daniel H. Blomberg, of the Becket Fund for Religious Liberty, Washington; and Kenneth R. Wynne, of Wynne & Wynne LLP, Houston, represented the nonprofit religious groups in the seven actions consolidated before the Supreme Court.
Donald B. Verrilli Jr., of the U.S. Department of Justice, Washington, represented the government.
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