Justice Anthony Kennedy had some helpful advice for the White House about how it could still provide birth control to women even after the Supreme Court dealt a blow to the law on Monday.
But the problem is, the Obama administration isn’t interested.
The swing-vote justice sided with the conservative majority on Monday, which ruled 5-4 that craft chain Hobby Lobby and other “closely held” for-profit companies do not have to provide contraceptives to their employees if doing so violates their religious beliefs. The decision means that thousands of the company’s female employees will not have access through their insurance to intrauterine devices and other forms of contraception their bosses object to. The case is the first to uphold a religious freedom right of a for-profit corporation.
But the justice, who is known for “splitting the baby” in big decisions in which he is often the deciding vote, suggested the government could still provide birth control to those employees by expanding President Barack Obama’s religious accommodation that currently covers only nonprofit religious organizations such as universities. Through regulation, the Obama administration has asked insurance companies to directly reach out to employees of religious nonprofits to offer them free contraceptives, so that the religious beliefs of the organization’s leaders are not offended. Obama offered the administrative accommodation in 2012, after Catholic bishops and other religious leaders were in uproar over the birth control mandate.
“The means to reconcile these two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances that closely parallel to those presented here,” Kennedy wrote in his concurrence to the majority opinion. The majority opinion, too, suggested the Obama administration has “provided no reason why the same system cannot be made available” to for-profit companies.
Under Kennedy’s plan, for-profit companies whose stock is primarily owned by five or fewer people could apply with the government for a religious exemption from the birth control portion of Obamacare, just as religiously affiliated hospitals and schools can now. (Churches are wholly exempt from the law.)
But this is not as easy a solution as it seems. For one, dozens of nonprofit groups are suing the government over the accommodation, saying the terms of it still violate their religious beliefs. Becket Fund attorney Mark Rienzi, who helped represent Hobby Lobby and nonprofit religious groups against the government, told reporters on Monday that the religious accommodation is not acceptable. His clients have no problem with the government directly giving people contraceptives, but they do not believe they are insulated enough from the process if their insurance company is doling out the birth control on its own dime.
Secondly, White House press secretary Josh Earnest appeared to reject the idea entirely at Monday’s press briefing.
He mentioned that the administration has offered accommodations to nonprofit companies, but said, “We believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.”
Earnest said the administration will “work with Congress” to come up with a solution. It’s possible that Democrats could seek to change the 1993 Religious Freedom Restoration Act, which protects individuals and groups from laws that infringe on their religious beliefs, to explicitly exclude for-profit corporations such as Hobby Lobby. Sen. Patty Murray of Washington, a Democrat, is considering legislative and administrative solutions to the ruling now, she told Yahoo News. But it’s unlikely that any measure reinforcing the birth control mandate could get through the Republican-controlled Congress. Sen. Dick Durbin, D-Ill., announced he wants to introduce a bill requiring employers to notify their workers if they are seeking a religious exemption to birth control. ("Women have a right to know if they are going to be denied access," Murray said of the plan.)
Timothy Jost, a law professor at Washington and Lee University, said he believes the easiest way for the government to ensure Hobby Lobby employees have contraceptive access is to expand the religious accommodation to include small for-profit companies, given partisan disagreements in Congress. He pointed out that at the very least, tens of thousands of female employees at religious nonprofits fall under the exemption already, dwarfing the probable number of women who work at closely held for profits with religious objections.
It’s unclear whether the White House might find another administrative way to get Hobby Lobby employees access to free birth control. Earnest said the administration is still reviewing the decision and determining its legal implications.
In the meantime, the decision is likely to provide more fodder for midterm politicking, with Democrats saying it’s another example of conservatives interfering with women’s reproductive health and Republicans claiming it as a victory against the Obama administration’s attack on religious liberty.