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Obama administration to issue another contraception accommodation

As religious non-profits sue the Obama administration over the opt-out form to contraceptive coverage, the administration plans yet another option.
A demonstrator holding up a sign outside the Supreme Court in Washington on June 30, 2014.
A demonstrator holding up a sign outside the Supreme Court in Washington on June 30, 2014.

The already bizarre and convoluted story of religious exemptions to insurance coverage of birth control just got even more so, as the Obama administration has said it is planning yet another way to cover women whose employers have religious objections to the Affordable Care Act's contraception requirement. 

The government will “augment the regulatory accommodation process” that exists for religiously affiliated non-profits, it said in a brief to the 10th Circuit of Appeals. Details were scant, but the brief said “interim final rules” would be issued within a month.

The government has already provided an “accommodation” for religiously-affiliated nonprofits like the Little Sisters of the Poor, an old-age home run by Catholic nuns whose case was at issue. But the Little Sisters are one of over 100 nonprofit organizations suing the administration over that very accommodation, which involves signing a form that certifies the organization's religious objection so that the insurer can provide the coverage directly. The plaintiffs say that signing the opt-out form -- i.e. informing the government they object and saving them from having to financially contribute to birth control coverage -- still violates their religious religious liberty because it “triggers” the coverage.

The Obama administration argues in the same Little Sisters brief that this view of the form is “fundamentally mistaken" -- that the law, not the form, compels the coverage.

“Submitting the self-certification form to the insurance issuer or third-party administrator does not ‘trigger’ contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.”

In January, the Supreme Court said in a preliminary order that the Little Sisters of the Poor could write a letter instead of signing the form. Their case was unusual, since the Little Sisters has a “church plan” that is already exempt from ever offering contraceptive coverage. In June, the Supreme Court ruled in Hobby Lobby that for-profit corporations were entitled to opt out of covering contraception, partly on the grounds that the government had other ways to get women contraceptive coverage -- namely, the accommodation.

Then the court turned around days later and said in another preliminary order that Wheaton College -- an evangelical college which does have a plan that would result in women getting birth control -- didn’t have to sign the form while its litigation proceeded, and could also write a letter.

This not only infuriated the female justices, who accused the majority of going back on their word in Hobby Lobby. It also confused just about everyone about what Wheaton writing a letter actually meant. Would it actually result in the same contraceptive coverage, as the court’s majority claimed? If so, why did Wheaton College and its attorneys cheer the court’s “wise decision” if the letter results in exactly the coverage they want to block? Why is the form a violation of religious liberty, but not the letter?

The Becket Fund, which represents Wheaton and the Little Sisters, declined to respond to repeated questions from msnbc about their view on the letter and the form earlier this month. And the Department of Health and Human Services had no answers to a detailed query.

“This is part of ensuring that all women have access to contraception coverage,” said a senior administration official. “The administration believes the accommodation is legally sound, but in light of the Supreme Court order regarding Wheaton College, the Departments intend to augment their regulations to provide an alternative way for objecting non-profit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing."