Obama rejects Supreme Court’s contraception trade-off

The administration shot down the Supreme Court’s effort to forge a compromise on Obamacare’s contraceptive mandate, saying Tuesday that the justices’ alternative proposal would set up too many hurdles for the government and insurers.

Instead, the Justice Department asked the court to stick with President Obama’s current plans, which require religious charities such as Catholic hospitals and religious schools to sign a form triggering the contraceptive coverage.

“Requiring a party seeking an exemption to certify its eligibility in writing is a common and appropriate way to effectuate a religious accommodation,” Solicitor General Donald B. Verrilli Jr. said.

The contraceptive mandate has been controversial from the start, with religious groups saying they wanted no part of what they see as sinful activity by having their insurance pay for their female employees’ access to artificial contraceptives that violate church teachings.

Attempting a compromise, the Obama administration said nonprofits wouldn’t have to pay for coverage — but said they still had to fill out a form alerting their insurers, who would then step in to provide the coverage at no cost to the nonprofits.

Religious groups said signing the form still makes them complicit.

In an unusual move, the Supreme Court last month ordered both sides to try to think of other solutions — and the justices even offered one of their own: religiously affiliated charities, hospitals and universities that object to contraception — such as the Little Sisters of the Poor order of nuns that brought the case — could tell their insurers that they don’t want their plans to do things to which they object on religious grounds.

Armed with that knowledge, insurance companies would then notify the employees directly that “the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by [the charities] and is not provided through petitioners’ health plan.”

The administration late Tuesday urged the court to stick with Mr. Obama’s scheme instead, saying it wasn’t that different from what the justices wanted.

“The accommodation already relieves petitioners of any obligation to provide contraceptive coverage and instead requires insurers to provide coverage separately,” he wrote. “The only difference is the way the accommodation is invoked.”

In its own brief the Little Sisters said “yes” to the court’s proposal, so long as it cut the nonprofits completely out of the process. For instance, the government could require insurance companies that contract with employers that do not insure contraceptives to contact affected employees and offer them separate coverage.

Attorneys at The Becket Fund for Religious Liberty, which is representing the Little Sisters, said the government could pay for the coverage as individual policies or as part of group plans if it wants.

“The government can get contraceptive coverage to petitioners’ employees — and can even do so through the same insurance companies with which some petitioners contract — without demanding, on pain of massive penalties, that petitioners take steps to comply with the contraceptive mandate,” the group’s attorneys wrote.

Becket said the government would have to develop its own methods for reaching out to employees of nonprofits that self-insure. For instance, it could ask willing doctors to tell those women how to enroll in the separate plans or launch some other type of awareness campaign.

The justices are grasping for middle ground after they appeared split, 4-4, along familiar lines over lawsuits from religious groups who say the Obama administration “hijacked” their employer health plans to carry out its contraceptive mandate.

Mr. Verrilli said the court must “make clear” that the government can still require the nonprofits’ insurers to provide separate contraceptive coverage to the objectors’ employees.

Any gray area, he wrote, “could lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.”