Guest Blog: Molly Duane, Just Say No to the Religious Veto


On Friday, the Obama administration issued new rules addressing the Affordable Care Act’s (“ACA’s”) requirement that employer insurance plans include coverage of contraception for their female employees.

These rules come as a response to the thrashing that the ACA’s contraception mandate received in the last Supreme Court term. While certainly a step in the right direction, a lurking Establishment Clause problem with the contraception mandate’s accommodations continues to fly under the radar. The administration’s efforts to avoid violating the religious rights of employers are ignoring the burden on the rights of female employees, in violation of the Establishment Clause (which prohibits government endorsement of a particular religion). Because it appears that the Establishment Clause concerns in these cases—at least for now—will continue to be ignored by both the administration and the public at large, we likely haven’t heard the last of Hobby Lobby.

The New Regulations in a Nutshell

The new regulations propose two important changes to the contraception mandate’s legal scheme. First, they create a further accommodation for the religious nonprofits already accommodated by the contraception mandate. This fix responds to the legal challenges to the mandate by nonprofit employers. Second, they extend this accommodation to religious for-profit closely held corporations. This fix responds directly to the Hobby Lobby ruling. With these new regulations, the Obama administration seeks to ensure that female employees of all religious employers still obtain contraceptive services without a co-pay, as intended by the ACA.

Background on the Religious Nonprofit Accommodation Cases

It is important to distinguish the issues in Hobby Lobby from those raised by the nonprofits. Much of the discussion of nonprofits—Wheaton College, Little Sisters of the Poor, Notre Dame, etc.—has been folded into the Hobby Lobby hoopla, yet the issues in these cases are actually quite different and should not be confused. Why? Because religious nonprofit employers are already, under existing law, exempted from paying for contraceptive services for their employees. (Recall that Hobby Lobby’s objection was to the requirement that it pay for several forms of contraception.) This “nonprofit accommodation” requires only that a nonprofit employer who objects to providing contraception as part of its employee health plan on religious grounds submit a one-page form to its insurance company stating its objection. The insurance company is then required by law to separately provide and fund contraceptive services for the objecting nonprofit’s employees.

Sounds great, right? Employees still receive insurance coverage for the essential reproductive health care services that the government sought to guarantee in the ACA, and the religious nonprofit itself need not participate in or pay for the provision of contraceptive services to its employees. Seemingly, everybody wins.

Not so, apparently. To date, 65 cases have been filed by nonprofits complaining that sending the one-page form to their insurance companies itself is a substantial burden on their religious free exercise rights. Twice now—first for the Little Sisters of the Poor and more recently for Wheaton College—the Supreme Court has said that, while its case is pending, the nonprofit need not fill out and send this form to its insurance company. Instead, the Supreme Court required that Little Sisters and Wheaton College send a letter to the Secretary of Health and Human Services (“HHS”) detailing their religious objections in their own words. HHS, in turn, is then responsible for instructing the insurance companies to begin providing separate contraceptive coverage to employees.

If this game of telephone seems needlessly complicated, that’s because it is. The Supreme Court’s fix in these cases, which the administration proposes to make permanent with its new regulations, seeks to prevent the nonprofits from engaging in any act that could be seen as complicit in its employees’ use of contraception. The focus is on removing any burden, real or imagined, on the religious beliefs of those individuals running the nonprofit.

The New Regulations Create an Extra Accommodation for Nonprofits

The Obama Administration’s new regulations codify the Supreme Court’s orders in Little Sisters and Wheaton College. Under the new rules, a religious nonprofit objecting to the contraception mandate can either send the original one-page form to its insurance company or write to HHS directly. The administration has created a sample letter that nonprofits can but are not required to use when writing to HHS. Either way, the nonprofit’s female employees will receive contraceptive coverage directly from their insurer, and the nonprofit itself will not have to pick up the tab.

What remains unclear is whether the Supreme Court, if asked the question directly, would find the accommodation scheme constitutional. In Hobby Lobby, the Court rejected the government’s requirement that Hobby Lobby pay for contraceptive coverage for its employees directly. The Court pointed to the nonprofit accommodation as evidence of a way to achieve the ACA’s goals through a method less intrusive to the religious beliefs of the employer. Yet the Wheaton College order suggested that the accommodation’s required paperwork may still infringe on employers’ religious rights. Justice Sotomayor wrote a scathing dissent in the Wheaton College order, accusing the majority of undermining its one-day-old precedent from Hobby Lobby based on different methods of paper-pushing! Yet, while the Supreme Court’s procedural tweak quite plainly involves a difference of form rather than function, it is a modification with apparent legal significance for a majority of the Justices, and the administration is buying what they’re selling.

What About the Constitutional Rights of Female Employees?

The great question that goes unanswered in the nonprofit cases is: How can an employer constitutionally seek to limit the health care services of its employees without running afoul of the Establishment Clause?

The First Amendment has two often opposing goals when it comes to religion: the Free Exercise Clause prohibits discrimination based on religion while the Establishment Clause prevents the government from favoring one religion over another or nonbelievers. According to the Supreme Court, the Establishment Clause prohibits the government from delegating regulatory authority to a religious organization, thus giving it veto power over the actions of third parties. Further, the Establishment Clause prohibits accommodating religious belief in a way that will shift the burden from a religious entity to an innocent third party.

Both Establishment Clause principles raise red flags in these cases. Religious employers effectively veto their female employees’ ability to receive contraceptive services by refusing to comply with the nonprofit accommodation. Further, female employees are innocent third parties, so removing a burden on the religious beliefs of an employer at its employees’ expense violates the Establishment Clause. Yet, with the exception of a handful of constitutional scholars and reporters, no one is talking about this side of the constitutional coin, including the administration in its new regulations.

The Real Purpose of the New Regulations

What, then, will the new regulations accomplish? Essentially, the administration is calling Wheaton College’s bluff. The Obama administration is saying: Wheaton College doesn’t want to send a one-page form to its instance company? Fine, HHS will do it for them. Hobby Lobby doesn’t want to pay for certain contraceptive services itself? Fine, HHS will compel the insurance companies to pay for them directly as they do for nonprofits. These are simple and pragmatic fixes to the free exercise objections that religious corporations have raised in their cases so far. But it remains to be seen whether religious employers—nonprofits and for-profits alike—will be satisfied with the fix. My bet is, they won’t.

The undertone that runs through the nonprofit cases is that religious employers do not want to pay for contraceptive services for their employees and they do not want their insurance companies to pay either. Already pundits are complaining that the accommodation is really meaningless: it doesn’t matter who pays for contraception because the employer is still facilitating coverage. They don’t like the contraception mandate and they want it gone. Period.

Religious employers are engaged in an unconstitutional attempt to veto certain health care coverage for their employees. Without acknowledging this fact and the Establishment Clause concerns it raises, it is unlikely that the Obama administration will see an end to contraception mandate litigation anytime soon.