The Obama administration has issued a new set of rules to provide contraceptive access to women whose employers object to their insurance plans covering birth control, which is required under the Affordable Care Act.

The new policies are intended to fill gaps left by two Supreme Court moves: The landmark Hobby Lobby decision saying contraceptive coverage violated the religious liberty of a for-profit corporation, and a preliminary order in Wheaton College v. Burwell. With today’s regulations, employees of for-profit corporations like Hobby Lobby will be able to access an “accommodation” where the insurer directly provides the cost-free coverage with no financial involvement by the employer. That accommodation was originally limited to religiously-affiliated nonprofits like Little Sisters of the Poor; houses of worship are fully exempt.

For nonprofits like Wheaton College that object to even that accommodation – which involves them signing a form to their insurer – the Obama administration has created a new accommodation to the accommodation. (Yes, it gets complicated.)

“The rules, which are in response to recent court decisions, balance our commitment to helping ensure women have continued access to coverage for preventive services important to their health, with the Administration’s goal of respecting religious beliefs,” Health and Human Services Secretary Sylvia Burwell said.

For the non-profits that object to the form – arguing that signing it triggers the very birth control coverage they oppose – the new rule allows those employers to write to HHS directly, instead of filling out the form. The Supreme Court first suggested the letter-writing option, and so far the litigants have accepted it. But there was some dispute among legal scholars before about whether the letter would result in actual coverage for the women who worked at those companies. The new rule clarifies that it does.

HHS is also seeking comment on exactly how to structure its accommodation for for-profit companies like Hobby Lobby, which is only one of 193 corporations that have sued for an exemption from covering contraception.

In June, the Supreme Court ruled that the Affordable Care Act’s rule that all insurance plans cover contraception without a co-pay as preventative care was a burden on the religious freedom of Hobby Lobby and other “closely held” companies. (That decision now guides courts considering other companies with objections to some or all forms of contraception.) The majority opinion, written by Justice Samuel Alito, said the government failed to show it had pursued the least restrictive way of getting women contraceptive coverage, and as proof pointed to the non-profit accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations.”

A few days later, when asked to prevent Wheaton College, one of the nonprofits suing over the accommodation, from having to fill out the accommodation form to their insurer while their litigation proceeded, a majority of justices said Wheaton could write a letter instead. Justice Sonia Sotomayor, in a fierce dissent signed by the other two female justices, accused the court of going back on its word in Hobby Lobby, writing, “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened … does not make it so.”

“[T]hinking one’s religious beliefs are substantially burdened … does not make it so.” Justice Sonia Sotomayor

At the time, Wheaton hailed the letter-writing option as a victory, but it’s far from clear that the new accommodations will mollify all of the plaintiffs now that it’s clear the end result will be women getting no-cost contraception.

In July, after the government signaled it would issue the new rules announced today, Lori Windham, Senior Counsel for the Becket Fund, which represents Wheaton College and several other nonprofit litigants, said, “This is just the latest step in the government’s long retreat on the HHS Mandate. It is at least the seventh time in three years that the government has retreated from its original, hard-line stance that only ‘houses of worship’ that hire and serve fellow believers deserve religious freedom.” Windham did not say whether the letter-writing option would ultimately be satisfactory, but said, “We are encouraged that the government is reviewing its policies.”

At oral argument for Hobby Lobby, Justice Sotomayor asked the company’s attorney, Paul Clement, “Will your clients claim that filling out the form, if ­­ – you’re saying they would claim an exemption like the churches have already?” She was referring to the case of the Little Sisters of the Poor, which like Wheaton College is a religiously-affiliated nonprofit that had sued for an exemption, saying the accommodation was not enough. The Supreme Court had told the Little Sisters it could write a letter to HHS instead of filling out the form.

Clement’s reply was cagey. “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that. But it’s important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn’t be a problem with that.”



Indeed, Marty Lederman, a professor at Georgetown Law School who has written extensively about the contraceptive cases, wrote in July of the letter option, “I think it is likely that most of those organizations will not be satisfied: They will argue that such a ‘fix,’ too, violates their rights under RFRA, because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage.”

In other words, the legal fights against the Obama administration over contraceptive coverage aren’t going anywhere anytime soon.