New Contraception Proposal

The Obama administration has published a proposed new contraception rule coverage proposal for public comment. Here's a link to the proposal. I haven't yet had a chance to read through it, but it seems to address both religious nonprofits not covered by the original rule and self-insured plans by requiring third parties to provide contraceptive coverage to employees of all nonprofits who object to contraception coverage on religious grounds. It will be interesting to see how the Catholic bureaucracy reacts. I will be posting more detailed thoughts once I have a chance to digest the proposal.UPDATE: Here's a link to reaction to the proposal from Rick Garnett and Tom Berg, both at MOJ. Their posts also collect some other reactions, mostly negative. [FURTHER UPDATE: Via the invaluable David Gibson in the comments, here is the surprisingly positive reaction by theCatholic League.]My reaction is more favorable than either of Tom's or Rick's. While I suppose I agree with Tom that the rule doesn't change all that much regarding the exemption for churches, it does get rid of the four-part definition that lots of people were complaining about and that, frankly, did not make a lot of sense. Anyway, that was never the main event. The real game is the "accommodation" for non-churches with religious objections to contraception. The accommodation would require the insurer to provide free contraceptive coverage to the employees of nonprofit employers with religious objections to providing coverage for contraception without charging the employer or requiring the employer to take any affirmative steps to facilitate the employee's enjoyment of the contraceptive coverage. The idea here is that the contraceptive coverage pays for itself because (as an actuarial matter) access to free contraception reduces the health care costs for which the insurer would otherwise be on the hook. In the case of self-insured employers who hire an outside administrator (usually a health insurance company), it would assign this obligation to the administrator, who, again, could not pass the costs on to the employer. Here, the actuarial, self-funding argument does not work for the third party administrator, because the savings from contraceptive use go to the self-insuring employer, not the administrator. The government would therefore have to compensate the administrator, and it proposes to do this by reducing the fees the administrator must pay to participate in the insurance exchanges. There is no plan for self-insured employers who do not hire an outside administrator, but the proposal says this is likely to represent a very small number of plans. And, of course, the only burden this would place on them would be to hire a third party administrator.Tom is right that some people have objected to this accommodation from the beginning, but I have yet to see a good explanation for how the accommodation infringes on employers' religious freedom that does not involve heroic efforts at locating the burden in some kind of but-for causation that somehow applies to insurance benefits but not pay. As a doctrinal and predictive matter, I think it is highly unlikely that any of the Catholic entities that challenged the original rule will get very far challenging this accommodation on either First Amendment or RFRA grounds. And, normatively, I think that is the right result. What a religious objector would be asserting in challenging the accommodation is a right, not only to opt out of contracting for coverage for contraception as part of an employer health plan, but also a right to prohibit the insurer with whom the employer contracts from separately contracting to provide contraceptive coverage to the employer's employees.All that said, in reading through the proposal, I am struck by how simple it would be to accommodate for-profit employes who object to the contraception mandate on religious grounds. Now, to be clear, I am not at all convinced that even the original proposal violates the religious freedom of such employers. But, in light of the mechanisms the government has chosen to put in place to accommodate nonprofit employers, it seems to me to be a trivial administrative burden to expand the accommodation to all employers who object.The government answers this in its proposal by pointing out that the accommodation under Title VII for religious employers to engage in religious discrimination distinguishes between for-profit and non-profit entities, restricting conscientious exemptions to the latter. I am not convinced by the analogy to religious discrimination. In the case of discrimination, it is the act of discrimination that we think is harmful to the person who is discriminated against, and expanding exemptions beyond the narrowest possible domain we think might be required by our obligation to protect religious or associational freedom expands the domain where people can be harmed by discrimination. That is, the zero sum quality of the antidiscrimination context exerts a kind of hydraulic pressure to craft exemptions as narrowly as necessary. But that is not the case here. We don't much care how employees get their access to contraception. We just want them to get it if they want it. In creating this accommodation, the administration has crafted a workable mechanism to allow employees to get their contraceptive coverage at no cost, without significant (in my opinion) involvement by employers. I don't see the rationale for not expanding that mechanism as far as possible, even including for-profit employers with religious objections. I mean, why not?

Eduardo M. Peñalver is the Allan R. Tessler Dean of the Cornell Law School. The views expressed in the piece are his own, and should not be attributed to Cornell University or Cornell Law School.

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