Marty Lederman has a couple of posts at Jack Balkin’s blog that really help explain the details of the seemingly endless number of lawsuits filed against the contraception mandate in the Affordable Care Act. There are two different kinds of suits, those filed by religious non-profit organizations and those filed by for-profit companies with religious owners. The ACA has different requirements for those two types of plaintiffs. And there are actually different rules for two different types of religious non-profits:
As some of you may know, the Executive branch has provided two types of religious accommodations to nonprofit employers that object to the HHS Preventive Heath Services Rule:
First, some such employers–primarily, churches and their auxiliaries–are exempt altogether from the requirement that they include contraceptive coverage if they offer a health-insurance plan to their employees. The women who work for such churches thus are virtually the only women in the United States who will not be afforded this new national benefit, which I described in further detail in this post. The government’s explanation for this exemption is, in effect, that because such employers typically can and do prefer to hire employees who are coreligionists who can be assumed to share the churches’ religious commitments, such employees are less likely to wish to purchase birth control: “[H]ouses of worship and their integrated auxiliaries that object to contraceptive coverage on religious grounds are more likely than other employers to employ people of the same faith who share the same objection, and who would therefore be less likely than other people to use contraceptive services even if such services were covered under their plan.” 78 Fed. Reg. 39,874 (July 2, 2013).
Under what I will call the “secondary accommodation,” other religious nonprofits who object to contraceptive coverage also can exclude it from their employee (and student) health-insurance plans. These nonprofit organizations need only certify that they have religious objections to providing coverage for contraceptive services, in which case they will not be required “to contract, arrange, pay, or refer for contraceptive coverage.” 78 Fed. Reg. 39,872. But with respect to most of this category of religious employers–in contrast to churches–the government has created a system in which their employees, who are not typically coreligionists, can still receive contraceptive coverage without cost-sharing, albeit from a different source. If a religious nonprofit organization opts out, the insurance company that issues the policy to the employer, or the third-party administrator that administers the organization’s self-insured group health plan, generally must assume responsibility for contraceptive coverage and provide or arrange separate payments to employees for contraceptive services. Such insurance issuers and third-party administrators are expressly prohibited from imposing any premium, fee, or other charge, directly or indirectly, on the employer/university or its group health plan with respect to contraceptive coverage. 45 C.F.R. § 147.131(c)(2)(ii); see also 78 Fed. Reg. 39,876-77. The government has determined that insurance issuers, such as Aetna, will actually save money by providing separate contraceptive coverage (since it will thereby avoid the costs of unintended pregnancies). And in the case of self-insured group health plans, the costs of coverage that would be incurred by the third-party administrator are borne instead by the federal government, in the form of an adjustment to the user fees paid by that third-party administrator on the federally administered exchange.
A few dozen nonprofit religious organizations have brought RFRA challenges to this secondary accommodation, even though the whole purpose and effect of the exemption is to relieve them of any obligation “to contract, arrange, pay, or refer for contraceptive coverage” if they offer health insurance to their employees (or students). What could these nonprofit organizations possibly be complaining about? In particular, how can they allege that a rule that exempts them from the condition that applies to for-profit employers such as Hobby Lobby nevertheless “substantially burdens” their exercise of religion?
As I noted in my opening post, the plaintiffs in the two cases before the Court allege that the “Preventive Services” Rule, issued by the Departments of Health and Human Services, Labor and Treasury, “substantially burdens” their exercise of religion for purposes of RFRA based on the following logic:
(i) federal law requires the companies in question to offer their employees access to a medical insurance plan;
(ii) the HHS Rule requires such an insurance plan to provide for coverage of “abortifacients”;
(iii) the companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay for, train others to engage in, or otherwise support [the use of] abortion-causing drugs and devices”; and
(iv) the owners’ religions forbid them from doing so, because such actions make them “complicit” in their employees’ eventual use of “abortifacients.”…
1. Let’s begin with what the challenged HHS Rule requires. As I’ll discuss in my next post, neither the HHS Rule nor any other federal law requires employers to offer a health-care plan to their employees. What the Rule does, instead, is to specify certain coverage that must be contained in such plans that are offered.
Even prior to 2010, federal law required that group health insurance plans include coverage for several things, such as minimum hospital stays for mothers and newborns after birth, 29 U.S.C. § 1185; reconstructive breast surgery if the plan otherwise covers mastectomies, id. § 1185b; and routine patient costs for items and services furnished in connection with participation in certain clinical trials, 42 U.S.C. § 300gg-8.
The ACA made a significant addition to this list: Congress decided that virtually all Americans should be entitled to a wide array of affordable “preventive health services.” Many people receive such services through Medicare, or Medicaid, or by purchasing a plan (often with substantial government subsidies) on a government-run “exchange.” But many Americans receive their health insurance from a plan offered by their employers. Accordingly, the ACA requires that such employer plans–like all other plans–include the specified “preventive health services,” which must be made available without cost-sharing, that is, without requiring plan participants and beneficiaries to make copayments or pay deductibles or coinsurance. Id. § 300gg-13. These services include: cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; and “evidence-informed preventive care and screenings” for infants, children, and adolescents.
Most importantly for present purposes, the ACA also requires coverage “with respect to women, [of] such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”
He’s doing a whole series of these posts explaining every aspect of the arguments being made. For those who are interested in the actual legal arguments rather than the political ones, as I am, I suggested keeping an eye on Balkinization.