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Religious nonprofits, government still far apart on contraceptive mandate

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A compromise between the government and religious nonprofits over the contraceptive mandate in President Barack Obama's health care law looks a long way off.

Briefs filed in the U.S. Supreme Court case over the mandate show the government and nonprofits that object to the law's requirement that employers provide contraceptive coverage remain far apart on the issue, and legal experts predict the controversy won't be resolved until the high court rules later this year.

In an unusual move, the Supreme Court in March ordered the parties involved in the case, The Rev. David A. Zubik et al. v. Sylvia Burwell et al., to file supplemental briefs addressing how employees could obtain prescription contraceptives from the religious nonprofits' health insurers, but “in a way that does not require any involvement of petitioners.”

The petitioners, which include religiously affiliated nonprofit universities and colleges, nursing homes, charities and several Roman Catholic institutions, challenged the law's rule that requires them to notify their insurers or third-party administrators of their objections to providing contraceptive coverage, with the insurers or TPAs then providing the contraceptives.

The nonprofits, which argued their case before an eight-member Supreme Court in March, said the accommodation to the contraceptive mandate still would make them complicit in providing contraceptives to their employees, which they say violates their faith and rights under the Relgious Freedom Restoration Act.

In what appeared to be the beginnings of a compromise, the religious nonprofits and the government said in supplemental briefs filed April 12 that the accommodation could be modified so the religious nonprofits' employees could secure contraceptive coverage through the nonprofits' insurers without any involvement of the nonprofit.

No agreement yet

But the parties failed to agree on how exactly the accomodation should be modified.

The nonprofits said in their supplemental brief that their objections would be “fully addressed” if contraceptive coverage is offered to their employees “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.”

They suggested requiring insurers to create separate contraceptive-only plans in which employees can enroll without help from the nonprofits.

But in the government's reply brief, U.S. Solicitor General Donald B. Verrilli Jr., argued that such a system would be “unworkable” because of differences in state insurance laws. Mr. Verrilli also said that requiring women to proactively enroll for contraceptive coverage is “precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.”

In the government's original supplemental brief, Mr. Verrilli said an accommodation modified per the Supreme Court's order would work only for fully insured employers, not those who are self-insured. So self-insured employers “can switch to an insured plan,” he said. Mr. Verilli did not suggest an alternative.

The nonprofits vehemently opposed the suggestion in their reply brief.

“Setting aside the untold costs and disruptions occasioned by such a compelled switch, when the government's only solution to a (Religious Freedom Restoration Act) problem is to force religious organizations to abandon their church plans, something has clearly gone wrong,” they stated in a reply brief.

Clearly, both parties are still in disagreement, said Amy Gordon, Chicago-based co-chair of law firm McDermott Will & Emery L.L.P.'s health and welfare benefits affinity group.

“I thought both sides had really good, compelling arguments … I do not envy the Supreme Court to have to make a decision,” Ms. Gordon said.

“The court may in the end impose a compromise that would be acceptable to five of the justices, but perhaps to neither party. A 4-4 split, which would leave the rule in place through most of the country except the 8th Circuit, seems also very possible,” Timothy Jost, an expert on the health reform law and emeritus professor at the Washington and Lee University School of Law, said in a blog post last week for the journal Health Affairs.

“We may well not know until June where the court lands,” he said.