Commentary: Why I don’t think the Court’s Wheaton College decision rests on any misunderstanding of the law

I think Martys 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 Labors Form 700. That form has a specific legal consequence: it deems the entitys 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 Martys concern. Under the Courts opinion, Wheaton College will not fill out Form 700. It will instead identify itself to the government as religiously affiliated. So as things stand, Wheatons 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 entitys 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 doesnt 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. Martys problem is solved. Marty says it may be very difficult; it seems to me that it will take five minutes.

Part of Martys understanding rests on the governments statement that Wheatons position would leave employees and students without coverage. But I think that misunderstands the governments brief, which in the relevant passages is referring to the consequence of accepting Wheatons 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 didnt accept Wheatons 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.

Martys 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 Courts opinions in Hobby Lobby and Wheaton College as well as Justice Anthony Kennedys controlling concurrence in Hobby Lobby make clear that is a losing argument. After all, the Court is clear in both cases that the entitys notice to the government will result in free contraception coverage. In fact, thats absolutely essential to the Courts reasoning: it is an easily available means of accomplishing the same end. Nothing about that reasoning turns on whether the entitys notice to the government formally changes its insurers status under ERISA. Its 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 dissents response in Wheaton College is that the Court has no business rewriting administrative regulations and that it is concerned that the Courts rule may not be workable or administrative on a national scale. But it doesnt otherwise explain its reason for believing that the injunction risks depriving hundreds of Wheatons 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 Courts opinions, it has concluded that the difference is material in terms of the entitys religious objections, but is not material in terms of whether the coverage is available. Thats why it didnt accept either the governments position or Wheatons, 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?