Supreme Court: accommodation, yes; Form 700, no

by Thomas Reese

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In my column last week, I argued: "The decision handed down Monday by the U.S. Supreme Court was a win for Hobby Lobby but a mixed blessing for the bishops.

"Hobby Lobby got what it wanted. The owners will no longer have to pay for coverage of the two contraceptives (IUDs and Plan B) that they consider abortifacients. ... But the decision's discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it." 

Parishes and dioceses were totally exempted from the contraceptive mandate, and most religious corporations were provided an accommodation so they would not have to pay for contraceptives in their insurance plans.

Under the accommodation, if a religious corporation objects to the contraceptive mandate, its insurance company would provide the contraceptives to the corporation's employees at no cost to the employer. All the employer has to do is fill out EBSA Form 700 and send it to the insurance company.

The government argues that it costs less for insurance companies to provide contraceptives than to pay for live births, which means there is no additional cost to pass on to the employer.

In the Hobby Lobby decision, the court argued that the accommodation should also be offered to for-profit corporations like Hobby Lobby. The accommodation was seen by the court as an excellent way of respecting the religious views of the company while still getting contraceptives to its employees. In his oral presentation to the court, the Hobby Lobby lawyer said such an accommodation would be acceptable to his client.

However, some religious employers, including the bishops, objected to the accommodation. They argued that filling out Form 700 and sending it to their insurance companies would constitute an immoral cooperation in the evil. These religious nonprofits have therefore challenged the accommodation, and their cases are working their way up through the judicial system.

Three days after the Hobby Lobby decision, the court issued an order in the Wheaton College case that gives hope to the bishops and the religious nonprofits challenging the accommodation. The court granted injunctive relief to Wheaton College and forbade the federal government from punishing Wheaton College if it did not fill out Form 700.

Is this a victory for the bishops? Depends. If the goal of the bishops is to put as much distance as possible between religious nonprofits and contraceptives, then the answer is yes. If the goal of the bishops is to deny contraceptives to employees of religious nonprofits, then the answer is no.

The language of the Wheaton order is very precise. It states: "The order should not be construed as an expression of the Court's views on the merits." Therefore, the order is a postponement of a fight, not the resolution of the dispute.

But the order clearly signals what the court thinks is the proper resolution of the case. It states that if the religious nonprofit informs Health and Human Services that it has religious objections to providing contraceptive services, then HHS cannot punish the nonprofit. The nonprofit does not have to fill out EBSA Form 700 and send it to its insurance company.

But this does not mean that the employees will be denied contraceptives. The court specifically says, "Nothing in this interim order affects the ability of" Wheaton College's "employees and students to obtain, without cost, the full range of FDA approved contraceptives."

The court notes that the government contends that the college's health insurance issuer is required by federal law to provide full contraceptive coverage regardless whether the college completes Form 700 or not. Thus, the court is not striking down the accommodation; it is striking down Form 700.

What the court appears to be saying is that if religious nonprofits have a problem with Form 700, then find another, less intrusive way of informing the insurance company. For example, the government could notify the insurance company after HHS has been informed by the nonprofit of its objection to contraceptives.

An even simpler way would be for the insurance company to listen to the nonprofit. If the nonprofit says either verbally or in writing that it does not want contraceptive coverage, then that is all the information the insurance company needs to know that it is now required by law to provide contraceptives to employees at no cost to the nonprofit.

The bottom line is that the Supreme Court likes the accommodation but thinks Form 700 is not necessary. My prediction: The court will give the bishops a win in their fight against Form 700, but it will not strike down the accommodation or stop contraceptives from reaching employees of religious nonprofits.

It appears that all of this litigation is over a two-page form asking for the name of the objecting corporation; the name and title of the individual filing the form; and the address, email address, and phone number of the individual filing the form.

Whether eliminating Form 700 is worth the millions of dollars spent on this fight is another question.

Remember, both the Hobby Lobby and the Wheaton College cases only apply to the federal mandate. Twenty-six states have contraceptive mandates, and they are not touched by these decisions. They are still the law.

Are the bishops willing to claim victory and go home, or will they try to kill the accommodation itself? Is the administration willing to shrug its shoulders and say, "We don't care about Form 700 as long as employees get their contraceptives"? Let's hope so.

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is Follow him on Twitter: @ThomasReeseSJ.]

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