I think Marty’s post below on the accommodation issue in the Wheaton College case is very interesting. But I think that the issues he raises are resolved more simply than his post suggests.
As I understand it, here is the nub of the potential problem. Presently, a religiously affiliated entity secures an accommodation from the contraception mandate by filling out and submitting the Department of Labor’s “Form 700.” That form has a specific legal consequence: it deems the entity’s health insurer to be a “plan administrator” under ERISA. That is important, because the government can only require a plan administrator – not every insurer – to provide free contraception coverage.
Here is Marty’s concern. Under the Court’s opinion, Wheaton College will not fill out Form 700. It will instead identify itself to the government as religiously affiliated. So as things stand, Wheaton’s insurer will not be deemed a plan administrator. So the government cannot require its insurer to provide free contraception coverage.
There seems to be a simple answer: Form 700 is not so special. The relevant regulation (29 C.F.R. § 2510.3-16(b)) says that the entity’s “self-certification” will deem its insurer a plan administrator. Another regulation (29 C.F.R. § 2590.715-2713A) says that a self-certification will be submitted in “a form and manner specified by” the government.
Right now, that “form and manner” is Form 700. But there doesn’t seem to be an obstacle to the government saying that the “form and manner” also includes a document in which the entity identifies itself as religiously affiliated. Undoubtedly, the government will do that. Marty’s problem is solved. Marty says it “may be very difficult”; it seems to me that it will take five minutes.
Part of Marty’s understanding rests on the government’s statement that Wheaton’s position would leave employees and students without coverage. But I think that misunderstands the government’s brief, which in the relevant passages is referring to the consequence of accepting Wheaton’s categorical position that it cannot be required to certify anything. The government was concerned with “the extraordinary claim” that Wheaton could “prevent the government from alleviating the resulting harm . . . by ensuring that others provide or arrange the coverage instead.”
The critical point is that the Court didn’t accept Wheaton’s most aggressive argument. Instead, it said that Wheaton would still have to make a representation to the government. And that the government can treat that representation as satisfying the requirements of ERISA.
Marty’s post suggests that there might be another potential problem. Maybe this version of the accommodation itself violates the Religious Freedom Restoration Act (RFRA), because it amounts to an act under which the entity is arranging for contraception coverage.
I think the Court’s opinions in Hobby Lobby and Wheaton College – as well as Justice Anthony Kennedy’s controlling concurrence in Hobby Lobby – make clear that is a losing argument. After all, the Court is clear in both cases that the entity’s notice to the government will result in free contraception coverage. In fact, that’s absolutely essential to the Court’s reasoning: it is an easily available means of accomplishing the same end. Nothing about that reasoning turns on whether the entity’s notice to the government formally changes its insurer’s status under ERISA. It’s hard to see how the Court could have been clearer in Wheaton College: “Nothing in this order precludes the Government from relying on this notice [by Wheaton], to the extent it considers it necessary, to facilitate the provision of full contraception coverage under the Act.”
The dissent’s response in Wheaton College is that “the Court has no business rewriting administrative regulations” and that it is concerned that the Court’s rule may not be “workable or administrative on a national scale.” But it doesn’t otherwise explain its reason for believing that the injunction “risks depriving hundreds of Wheaton’s employees and students of” coverage.
To the dissent, this seems like dancing on the head of a pin. Why does it violate RFRA to fill out Form 700, the dissent asks, but not to send in a notice to the government? As I read the Court’s opinions, it has concluded that the difference is material in terms of the entity’s religious objections, but is not material in terms of whether the coverage is available. That’s why it didn’t accept either the government’s position or Wheaton’s, but instead a middle ground. The Court in essence responds, “Why are you complaining so much that Wheaton is going to fill out one piece of paper rather than another?”