Stay tuned to Health Affairs Blog in the days ahead for more commentary about today’s Supreme Court decision.
Note: This post was updated on July 1, 2014, to discuss ongoing challenges to potential accommodations for employers that object to covering contraception.
Update. In its Hobby Lobby decision the Supreme Court majority concluded that the implementing agencies could not require the plaintiffs to cover contraceptive services for their employees because there was a less restrictive alternative that the agencies could use to achieve their presumably compelling interest in ensuring women access to contraceptives without cost-sharing. The alternative specifically referred to by the majority was the accommodation that the agencies had already offered non-profit organizations.
Under that accommodation, non-profit organizations may certify to their insurer or third-party administrator that they are conscientiously opposed to providing coverage for contraception. Once they do so, the insurer or third party administrator is responsible for covering contraception, with insurers using the funds they save by not covering pregnancies and third party administrators using payments they can recover from insurers who will pay them from funds that the insurers would otherwise pay to exchanges for exchange participation.
About 50 non-profit organizations are currently suing challenging that accommodation. The lawsuits raise a host of claims, but basically the organizations claim that the certification that they must make to their insurers and TPAs impermissibly entangles them in the obligation of the insurers and TPAs to offer coverage in violation of RFRA and the First Amendment. They also claim that a provision of the regulation prohibiting them from interfering with coverage of contraceptives by their insurers and TPAs violates their First Amendment freedom of expression rights.
So far over two dozen courts have entered temporary injunctions protecting the non-profits from complying with the accommodation. But a half dozen courts have refused injunctions, including the 6th and 7th circuits, rejecting all of the plaintiff’s claims as unlikely to prevail on the merits. The Supreme Court’s Hobby Lobby majority opinion, and in particular Justice Kennedy’s concurrence seemed to approve of the non-profit accommodation, although the Court made it clear in footnotes 9 and 40 that it was not conclusively deciding the question of the permissibility of the non-profit accommodation, which was not before it.
Surprisingly, therefore, later in the day on June 30 the Supreme Court issued a very temporary injunction barring the enforcement of the accommodation pending appeal in one of the non-profit cases, Wheaton College v. Burwell. In Wheaton College the district court had denied an injunction, relying on the 7th Circuit authority. The Supreme Court injunction only lasts until the Court can consider the government’s response, due July 2 by 10 a.m., and the college’s reply, due by 5 p.m. the same day, but signals that the Court may be prepared to resolve the issue, or at least address it, soon. Justices Breyer and Sotomayor dissented from the Court’s order.
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