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Injunction for Christian College Calls Contraceptive Coverage Accommodation into Question; Dems' Legislative Response Develops

Injunction for Christian College Calls Contraceptive Coverage Accommodation into Question; Dems' Legislative Response Develops

July 7, 2014 — The Supreme Court on Thursday cast doubt on an accommodation in the federal contraceptive coverage rules for religiously affiliated not-for-profit organizations, just days after the court cited the accommodation as an example of how employees could access contraceptive coverage if their employers have religious objections to offering it, CQ HealthBeat reports.

Under the federal contraceptive coverage rules, religiously affiliated not-for-profits can fill out a form that enables a third party to arrange and pay for contraceptive coverage. Private, for-profit employers are not eligible for the accommodation. However, in its ruling in Burwell v. Hobby Lobby, the Supreme Court said that the government could not force closely held corporations to offer contraceptive coverage in their employer-sponsored health plans if the businesses' owners have religious objections.

The justices who voted with the majority in the Hobby Lobby case said that the government's interest in ensuring public health through access to contraception could be met through the accommodation without infringing on business owners' religious beliefs (Reichard, CQ HealthBeat, 7/4).

Latest Ruling

On Thursday, the high court in a split decision granted an injunction to Wheaton College, an evangelical Christian college in Illinois, that prevents the federal government from enforcing the contraceptive coverage rules for the school while its case is pending in lower courts.

The college objected to the filling out the accommodation form, arguing that doing so would violate its constitutional rights.

The majority of justices wrote in the order, "To meet the condition for injunction pending appeal, [Wheaton College] need not use the form prescribed by the government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators" (Shabad, The Hill, 7/3). Instead, Wheaton could simply tell HHS that it has a religious objection and not offer the coverage, the justices said.

The justices in the majority stressed that their decision to grant the injunction is not a statement on the merits of the case. They also said that the decision would not prevent the college's employees or students from accessing birth control coverage because the government had argued that Wheaton's insurer is required to provide that coverage (Haberkorn, Politico, 7/3).

Sharp Dissent

In a dissenting opinion, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan sharply lambasted the majority's decision, arguing that it marked a "retreat" from their ruling in the Hobby Lobby case.

Sotomayor wrote, "After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act (PL 103-141)] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position."

Sotomayor also argued that the potential fines Wheaton would face for failing to comply with the rules did not warrant the Supreme Court granting an injunction, which is something it rarely does. She also questioned how burdensome the accommodation would be for the college, noting that while she does not doubt that "Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs," the idea that "one's religious beliefs are substantially burdened -- no matter how sincere or genuine that belief may be -- does not make it so" (Politico, 7/3).

Dems Plan Legislation To Reverse Supreme Court Ruling

In related news, Reps. Diana DeGette (D-Colo.) and Jerrold Nadler (D-N.Y.) said they are drafting two separate bills in response to the Supreme Court's ruling in the Hobby Lobby case, The Hill reports.

The lawmakers in a joint statement said, "Congress never intended RFRA to be used by employers as a means of interfering with private healthcare choices of their employees," adding that the law "kept in place the core principle that religion does not excuse for-profit businesses from complying with our nation's laws."

DeGette and Nadler have not provided additional details on their legislation. Several senators also have indicated recently that they are developing measures in response to the ruling (Al-Faruque, The Hill, 7/2).

Meanwhile, the White House is considering how it will ensure contraceptive coverage for people whose employers could stop offering the coverage.

According to the New York Times, the Obama administration is considering a proposal that would require companies' insurers and health plan administrators to provide coverage, as well as another proposal that would give the administration greater authority over ensuring such coverage to employees who cannot access it through their employers. The administration has not yet proposed ways to finance either option, according to the Times (Pear/Liptak, New York Times, 7/4).

More Women Accessing Birth Control Without Copayment

In related news, the proportion of women who accessed birth control pills without making a copayment increased to 56% in 2013, up from 14% in 2012, according to the IMS Institute, the AP/Miami Herald reports. The contraceptive coverage rules, which took effect in 2013, require most health plans to cover contraception and other preventive services without charging a copay.

According to the AP/Herald, the findings suggest that most employers are complying with the federal contraceptive rules.

IMS Institute noted that so far there does not seem to be an increase in the number of women using contraceptives. Although the number of prescriptions for oral contraceptives increased in 2013, the rate of growth was not different from other recent years. In addition, IMS did not find evidence of a substantial shift to long-acting contraceptives, which are more costly up front and more effective than short-term methods (Alonso-Zaldivar, AP/Miami Herald, 7/4).