Contraceptive-only insurance policies aren’t workable, the administration told the Supreme Court on Wednesday, rejecting the suggestion of religious nonprofits who want to avoid the Obamacare mandate that their health plans cover birth control methods the groups deem sinful.
But the religious charities said the administration needs to try harder to come up with an accommodation for them, saying the federal government can — and legally must — find ways around the state laws and insurance industry regulations that the Obama administration says are the holdup.
Both sides filed briefs requested earlier this year by the justices, who are grappling with the challenge by the Little Sisters of the Poor, an order of Catholic nuns, and other religious charities.
The administration argued the Little Sisters overstepped in asking for government and insurers to set up stand-alone policies and insurance cards for employees who seek contraceptives, rather than forcing the nonprofits to act in a way that triggers the actions of others.
The nonprofits “are well aware that reliance on such policies would not work,” wrote Solicitor General Donald B. Verrilli Jr.
Many states have rejected single-benefit policies, while some insurers who contract with employers do not offer individual plans, he said.
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But lawyers for the Little Sisters said a handful of states already offer contraception-only coverage through Medicaid, the government-sponsored health program for the poor.
“The point is, it can be done,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty.
An offshoot of Obamacare, the mandate has been controversial from the start, with religious groups saying they wanted to avoid having their insurance pay for their employees’ artificial contraception, which violates Catholic and some Protestant teachings.
The Obama administration offered a compromise — nonprofits wouldn’t have to pay for coverage, but 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 and thus violates their rights under the Religious Freedom Restoration Act.
The justices are searching for middle ground, and in a surprising move last month ordered both sides to try to think of other solutions. The justices even offered one of their own: religiously-affiliated charities, hospitals and universities that object to contraception could tell their insurers that they don’t want their plans to cover methods they object to on religious grounds.
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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 effectively rejected that plan last week, saying that while the justices’ proposal could work, it would create too many new hurdles.
On Wednesday, Mr. Verrilli said the goal is to give employees access to birth control without forcing them to enroll in a new plan.
“The accommodation serves the government’s compelling interest in ensuring that women receive complete, equal health coverage while imposing the minimum possible burden on religious exercise,” Mr. Verrilli said. “Every one of petitioners’ putative alternatives — old and new — would undermine that interest and harm tens of thousands of women.”
If the court decides to enforce its own proposal, Mr. Verrilli last week said it “should make clear” that the government can still require the nonprofits’ insurers to provide contraceptive coverage to the objectors’ employees.
The nonprofits, though, said that by admitting there is another option, the administration has proved that it’s breaking the 1993 Religious Freedom Restoration Act.
That law, signed by President Bill Clinton, said the government couldn’t burden someone’s religious exercise unless it could demonstrate that it was furthering a compelling government interest and doing it in the least restrictive way possible.
“The existence of less restrictive means brings this litigation to an end. Full stop,” the plaintiffs wrote in Wednesday’s brief. “It is now the government’s job, not petitioners’ or the court’s, to fashion a regulatory scheme that complies with RFRA.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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