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Religious non-profits fully endorse Court’s birth-control access idea

Seven groups of religious non-profit hospitals, charities, and colleges on Tuesday evening gave their full endorsement to the Supreme Court’s new compromise proposal for deciding the legality of the Affordable Care Act’s birth-control mandate, saying that the idea would keep them from violating their faiths.  They also argued that the mere suggestion of an alternative makes it clear that the existing ACA regulations on contraceptives are illegal under the Religious Freedom Restoration Act.

Unlike the federal government’s new response to the Court’s alternative in the Zubik v. Burwell cases, which warily accepted some version of the idea for religious non-profits that use health insurers but said the alternative would not work for those who provide coverage through self-insured plans, the institutions said the Court’s approach would work for those others, too.

The main facet of the Court’s suggestion that appeared to have satisfied the non-profits was that, while the same health insurance company would be providing two different coverage plans (one with, one without contraceptive benefits), the suggestion would result in sufficient degrees of separating the institutions from their employees’ access to services and devices to which they object on religious grounds.

The plan spelled out in the Court’s March 29 order, the non-profits’ new brief said, would amount to “the least restrictive means” — in the language of RFRA — for the government to protect women’s access to contraceptives while insulating the religious employers from complicity in what they regard as sinful.

The non-profits, the filing said, “have never raised RFRA objections to truly independent efforts to provide contraceptive coverage to their employees, whether that coverage is provided via the [ACA health insurance] Exchanges, Title X, or an omnibus agreement with a single insurer.”

“So long as the coverage provided through these alternatives is truly independent of [the non-profits] and their plans — i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source and offered to individuals through a separate communication — [the non-profits’] RFRA objections would be fully addressed.”

While it noted that the Court’s order had focused only on non-profits that obtain health coverage for their employees through an outside insurance company, their new filing said that the Court’s idea would also work for non-profits who self-insure or who have what the ACA calls “church plans.”  Many of those directly involved in the seven cases, it noted, are self-insured or have self-insured church plans.

“Less restrictive alternatives involving commercial insurance companies are available for those [others] as well,” it said.  “If commercial insurance companies were to offer truly separate contraceptive-only policies along the lines envisioned in the Court’s order, then the employees of [non-profits] who self-insure or use self-insured church plans could enroll in those separate contraceptives-only insurance policies as well.”

“All of these less restrictive alternatives,” the brief summed up on the main legal point in the cases, “underscore that the government’s current scheme violates RFRA.”

The brief repeated the claim made orally to the Court by the non-profits’ lawyers at the March 23 hearing on the seven cases, that the government’s current regulations “hijack” the institutions’ existing health plans and make them the channel through which contraceptives are made available to their women employees.

The new filing also sought to counter the government’s overall argument that, for women to have the incentive to obtain contraceptives, the ACA mandate must be carried out “seamlessly” — that is, with women able to get access by using the same doctor under the same health-insurance plan.  Having to sign up with two insurance companies and getting two cards would not be a significant barrier to the women, it said, and it even offered a quotation to that effect from existing government documents.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the Scholars of Religious Liberty, Sarah Barringer Gordon, et al., in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]

Recommended Citation: Lyle Denniston, Religious non-profits fully endorse Court’s birth-control access idea, SCOTUSblog (Apr. 12, 2016, 8:22 PM),