Contraception exceptions

The White House has essentially conceded that its current accommodation for nonprofits objecting to the contraceptive mandate will not survive legal tests. In late July a White House official told reporters on “deep background” that the administration was revising the proposed accommodation in light of the recent setbacks at the Supreme Court.

The current nonprofit accommodation is complicated, but it requires objecting nonprofits to fill out a form for their insurance company to register their objection to the mandate and authorizes their insurance company to cover the objectionable drugs. Most nonprofits have argued in court that signing the form makes them complicit in the provision of the drugs. Churches, on the other hand, are completely exempt from providing contraceptive coverage.

In two emergency orders against the mandate, for Little Sisters of the Poor and more recently for Wheaton College, the Supreme Court rejected the current nonprofit accommodation. The Supreme Court order on July 3 said Wheaton did not have to sign the form, but qualified for an injunction simply by informing the government that it objected to the mandate, via its lawsuit. The court said the government was then free to arrange coverage for Wheaton employees. Wheaton covers all contraceptives except Plan B and Ella, which it considers abortifacients. The emergency orders aren’t rulings on the mandate, but emphasize that the constitutionality of the nonprofit accommodation is questionable.

The White House has not said whether its new accommodation might look like the Supreme Court’s middle ground solution–where nonprofits would place the burden of arranging coverage with the government rather than arranging coverage themselves through their insurers.

A White House official said the administration would “provide an alternative way for objecting non-profit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing. While we are working through the details now, we expect this rulemaking to be issued within a month.” The administration promised the new accommodation within a month in similar language in a new filing with the 10th U.S. Circuit Court of Appeals on three consolidated nonprofit cases, including Little Sisters of the Poor.

A White House spokesman declined to elaborate on the new regulation beyond the “deep background” information provided by the anonymous official. The White House has apparently not sought input from the nonprofits involved. Lawyers who handle most of the nonprofit plaintiffs—from the Becket Fund for Religious Liberty, the Alliance Defending Freedom, and the American Freedom Law Center (AFLC)—said they have not heard from the White House on a potential new accommodation or settlement in their cases. Jones Day lawyers, who handle many of the Catholic cases, did not return a request for comment.

Nonprofits are divided about whether the Wheaton-type accommodation would be acceptable. Wheaton officials celebrated the emergency injunction. AFLC’s Robert Muise, counsel for Priests for Life, did not: “The end result is your beneficiaries are going to get contraception coverage by virtue of the fact that you have insurance through an insurer. You’re purchasing the insurance plan that becomes the mechanism by which the contraception is provided.” The D.C. Circuit Court of Appeals is expected to rule soon on Priests for Life’s case, which would be the first ruling on the merits of the nonprofits’ suits.

Muise acknowledged that it’s increasingly impossible to buy insurance without contraceptive coverage, whether the federal government exempts nonprofits or not. This is why some religious freedom lawyers have argued that all nonprofits can do is place the burden of arranging coverage on the government, because they can’t stop insurance companies from providing contraceptives.

Now almost every nonprofit that’s filed suit has an injunction against the contraceptive mandate, as they await more lower court rulings and the administration’s new rules.