The Obama administration announced Wednesday it would revise rules around ACA birth-control mandate opt-outs in an attempt to provide coverage for women adversely affected by recent Supreme Court decisions.
In a flurry of action at the end of the last term that started with the Hobby Lobby ruling and finished with an injunction in the case of Wheaton College, the High Court significantly expanded the reach of the Religious Freedom Protection Act. In the Hobby Lobby decision, the court invoked RFRA to allow a private corporation the right to opt out of requirements, set forth in the Affordable Care Act, that health plans include coverage of contraception and preventive services without a copay.
With Wheaton College, a court injunction allowed the private, Christian liberal arts institution to avoid filling out a form certifying that it was denying employees contraceptive coverage, a necessary step in the original plan to let the federal government step in to cover what the law calls part of “minimal essential coverage.”
The Wheaton case is still up for full judicial review. Until then, the injunction stands.
Another case, known as “Little Sisters of the Poor,” deals with a religious charity’s objection to the same procedure, and is expected to hit the Supreme Court next session.
The problem stems from the convoluted attempt by the ACA to keep private insurers and private employers fully involved in the task of providing America with affordable health coverage. Because religious institutions initially objected to paying into insurance plans that provided contraceptive services, a “Form 700” exemption was created. If an institution fills out that form and certifies that it is refusing to comply with the minimal essential coverage requirement mandated by the law, then the government can fill in the gaps. If the institution refuses to provide coverage and refuses to fill out a form, it would theoretically be subject to substantial fines.
But the injunction in Wheaton and the ever-lengthening tentacles of the Hobby Lobby decision do not bode well for the future of Form 700, so the White House is vowing an alternative fix:
A senior administration official said the details of the rules are still being worked out. But it is likely that the Supreme Court's order will shape the new compromise arrangement, and that nonprofit institutions will be able to write a letter stating their objections, rather than filing a form. That would leave the federal government to work out how those employers get access to contraception coverage.
That WSJ story goes on to say, “It isn't immediately clear if such arrangements will win the approval of faith groups and their affiliated institutions.”
The devil will, of course, reside deep inside the details, but the float immediately begs the question: If a company, charity, school or institution objects to filling out a form that will allow for contraceptive coverage, why would it feel any better about writing a letter that provokes the same result?
And that just begs bigger questions: Why need it be left in the hands of the employers? Why can’t an employee who needs coverage notify the government that their bosses are failing to meet the requirements of the ACA?
Or, bigger still: How did this mess ever come to be?
Every complicated compromise is, in the end, a means to allow the federal government to provide coverage, at least in this specific area. None of this would be necessary if federal coverage had been offered as an option to all Americans, regardless of employer or economic status, in the first place.
That kind of option, which went by many names during the 2009-10 fight over the ACA — national health insurance, Medicare for all, Medicare buy-in, or the least ambitious of the lot, the public option — was actually never an option at all, having been secretly negotiated away by the White House by July of 2009.
Instead, for reasons of specific intent or very poor foresight, the current kerfuffle seemed preferable.
But if that hadn’t happened and there were a simple option for Americans seeking comprehensive health coverage, what would all those lawyers in and out of the White House have to do all summer … or all those judges and clerks … or all the reporters and court analysts, for that matter?
Everyone can count his or her blessings. Except women employed by exempt institutions, of course.