New nonprofit exemption to contraceptive mandate coming soon

The Obama administration plans to release its new, new, new regulations for nonprofits objecting to the contraceptive mandate by Aug. 22, according to a court filing. The government set the deadline for itself in a filing at the 10th U.S. Circuit Court of Appeals on Friday in the Little Sisters of the Poor case challenging the mandate.

This will be the third time the federal government has issued regulations for nonprofits objecting to the contraceptive mandate. The administration issued a very narrow exemption when it first announced the mandate. After more than a year, it came up with a new “accommodation” for religious nonprofits that few found satisfactory. Now, after signals from the U.S. Supreme Court this year that the current nonprofit regulation might not work, the administration will try again. The new proposal will be an “interim final regulation,” which means the government will hold a comment period before the rule is finalized. The administration’s lawyers asked the 10th Circuit that Little Sisters’ lawyers inform the court by Sept. 2 if the organization plans to continue its lawsuit under the new regulation. Oral arguments on the case before the 10th Circuit are scheduled for Sept. 29.

The Supreme Court at the beginning of the year gave Little Sisters an emergency injunction against the mandate, the first injunction from the court for an objecting nonprofit. Then in July the Supreme Court issued an order granting an emergency injunction against the mandate to Wheaton College. The order exempted Wheaton, but said the federal government was free to try to provide Plan B and Ella (the abortifacients Wheaton does not cover) to Wheaton employees.

The new regulation could resemble the Wheaton accommodation the Supreme Court came up with; but the court explicitly said no one should construe its order as a ruling on the nonprofit cases. So the government might come up with its own scheme to try to satisfy the justices.

In July, a White House official speaking on background about the new regulation said it would “provide an alternative way for objecting non-profit religious organizations to provide notification [of their objection], while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing. "

Nonprofits and religious freedom lawyers are divided about the Wheaton approach. Some think that it is the most a nonprofit can demand—to be free of arranging any contraceptive coverage, and to notify the government of a conscientious objection to any provision. But others, foreseeing that the government could simply require the nonprofit’s insurance provider to cover the drugs, want a complete exemption from any coverage.