When the Supreme Court ruled in Hobby Lobby that closely-held corporations should be exempted from the contraception requirement in the Affordable Care Act, the majority said that there was a less restrictive means of maximizing access to contraception. The Obama administration has now done exactly what the court said they could do to get around that ruling:
The Obama administration on Friday issued its final rules for employers who morally object to covering birth control in their health insurance plans. The accommodation ensures that all employed women, unless they work for a place of worship, will still have their birth control covered at no cost to them, even if their employers refuse to cover it.
Under the new rule, a closely held for-profit company that objects to covering contraception in its health plan can write a letter to the Department of Health and Human Services stating its objection. HHS will then notify a third-party insurer of the company’s objection, and the insurer will provide birth control coverage to the company’s female employees at no additional cost to the company…
The contraception mandate carved out an accommodation for religious non-profits, such as Catholic schools and hospitals, but some for-profit companies run by religious people sued the administration because they felt the law violated their beliefs about contraception. The Evangelical Christian owners of the craft chain store Hobby Lobby, for instance, believe certain forms of contraception are akin to abortion because they can prevent a fertilized egg from implanting into the uterus.
The Supreme Court sided with Hobby Lobby last summer and said the administration must provide an accommodation for religious-owned “closely held” companies, or companies in which five or fewer people are majority owners. The compromise issued on Friday was the administration’s response to the high court’s decision.
In short, they decided to extend the “secondary accommodation” available to religious non-profits to closely-held corporations, which the majority in Hobby Lobby explicitly said would be constitutional. But there are still ongoing legal challenges by religious non-profits even to the secondary accommodation, arguing that even giving them an exemption isn’t good enough. They argue that the mere act of telling the government that they have a religious objection to providing contraception still violates their religious freedom because doing so triggers the accommodation.
This is an absurd argument, of course, but lower courts have been divided on it. It’s likely that those cases will reach the Supreme Court next term. The question then is, will they stick to their statements in Hobby Lobby that the secondary accommodation is a less restrictive means of achieving the compelling interest in maximizing access to birth control? Time will tell.