The Right’s Plan to Kill the Birth Control Benefit

Why is the Becket Fund expending so much time and money fighting against filling out a form—a requirement that, at first blush, seems like no big deal? As you’ll see, the implications of this brilliant legal strategy are anything but boring.

Why is the Becket Fund expending so much time and money fighting against filling out a form—a requirement that, at first blush, seems like no big deal? As you’ll see, the implications of this brilliant legal strategy are anything but boring. Religious freedom Constitution via Shutterstock

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

We all hate paperwork, and in particular, it’s fair to say that most of us really hate health insurance paperwork.

But the lawyers for the Becket Fund for Religious Liberty—the nonprofit law firm behind many of the legal challenges to the Affordable Care Act (ACA)—seem to have taken their hatred of paperwork to a new level. They hate health insurance paperwork so much that they have sent multiple cases to the U.S. Supreme Court to fight against filling out a single form that would allow them to opt out of the ACA’s birth control benefit.

The details are boring. Really, really boring. But as comedian John Oliver recently said, “If you want to do something evil, hide it in something boring.”

Why is the Becket Fund expending so much time and money fighting against filling out a form—a requirement that, at first blush, seems like no big deal? As you’ll see, the implications of this brilliant legal strategy are anything but boring. Indeed, this strategy has the potential to be the string that, when pulled, causes the ACA’s birth control benefit to unravel.

The Becket Fund’s most famous client is Hobby Lobby, the arts and crafts chain that took its objections to the birth control benefit all the way to the Supreme Court, and won.

In its controversial ruling last month, the Court’s majority decided that closely held corporations, such as Hobby Lobby, cannot be forced to provide health insurance policies that will cover certain contraceptives without an additional co-pay, because doing so would violate the company’s religious freedom. Hobby Lobby didn’t object to all contraceptives, but rather to those which it believed—sincerely, but wrongly—to cause abortions.

Key to the majority’s decision was the notion that the birth control benefit not only “substantially burdened” an employer’s religious freedoms under the Religious Freedom Restoration Act (RFRA), but also that the policy did not do so in the “least restrictive” way possible.

This balancing test is a fundamental element of RFRA; when deciding whether or not a particular law violates RFRA, a court must ask whether the government has a compelling interest in passing that particular law. If it does, the next question is whether the law substantially burdens religious freedom. And if the answer to that question is “yes,” then the court asks whether the law is the “least restrictive means” of achieving the government’s objective.

Even before the Affordable Care Act was passed, the Obama administration had carved out some exceptions to the birth control benefit for religious employers such as churches and evangelical schools.

The administration created a so-called accommodation for these groups, whereby religious employers could avoid the birth control benefit and instead saddle their insurer with the responsibility of providing contraceptive access. They could do this by simply filling out a form—known as Form 700—which employers submit to their health insurance issuer (for insured health plans) or third-party administrator (for self-insured plans), to indicate their view that their religious beliefs preclude them from participating in an insurance program that covers contraception. Once Form 700 has been submitted, the insurer or administrator will provide contraception coverage to an employee in the company’s stead.

But the administration’s desire to be so accommodating of religious liberty may be what dooms large parts of the health reform law, certainly as it relates to some forms of birth control.

In Hobby Lobby, the majority said that the exception for nonprofit entities showed that the government could have achieved its goal—of ensuring that employees had access to birth control without paying an additional co-pay—without requiring Hobby Lobby to provide health insurance plans that included such access. It could have allowed Hobby Lobby to fill out Form 700 and elect for someone else to provide the birth control, just as the nonprofits were able to do. Had the government done that, it would have won the case.

Or at least, that was what was heavily suggested by the majority’s opinion.

Just days later, the Court delivered a second punch to reproductive rights.

Wheaton College, another of the Becket Fund’s clients fighting the Affordable Care Act, argued that requiring the school to fill out Form 700 would also violate the nonprofit’s religious freedom, because, it said, filling out the form would make it complicit in the very behavior deemed sinful by Christian teachings.

“What Wheaton objects to is executing the government’s Form to designate, obligate, and incentivize its third-party administrator to provide religiously objectionable drugs on its behalf,” wrote Wheaton College in a brief filed with the Supreme Court.

Got that? By filling out a form to opt out of providing certain types of birth control, these groups—64 in total, seven of whom are represented by the Becket Fund—still say they are being forced to be complicit in sin, because their act of opting out triggers another process by which a woman can obtain her birth control.

The Becket Fund makes almost the same argument in briefs for its other clients, such as Reaching Souls International and Truett-McConnell College, religious nonprofits based in Oklahoma and Texas, respectively, whose cases are currently winding their way through the courts. Their argument is that what seems like a fairly meaningless task—filling out a form—might require these organizations to violate their faith.

Bizarre as that may sound, based on the majority decision to grant Wheaton College its injunction, it appears that the Supreme Court may agree.

Justice Sonia Sotomayor, however, dissented, and implied that she sees exactly what the Becket Fund’s real endgame is.

“It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees,” wrote Sotomayor in her dissent.

Precisely. Wheaton College does not want anyone to access birth control methods that it finds objectionable.

To really understand the underlying strategy here, you need only to game out what will happen if the Supreme Court holds that employers cannot be forced to fill out Form 700.

Justice Sotomayor did just that in her Wheaton College dissent.

In granting Wheaton College its injunction, the Court’s majority said that the school doesn’t have to fill out Form 700; it need only notify the Department of Health and Human Services in writing that it wants to opt out of the birth control benefit.

As Justice Sotomayor astutely noted, however, the majority’s interim order did not require Wheaton College to tell the department who its insurer is. That’s fine for the religious nonprofits that have already sued the government, since the department already knows who their insurers are and can easily work with them to make sure that birth control is available to the women who want it.

But what about the organizations that will seek a religious exemption in the future but who have not sued the government? How will the department figure out who their insurers are? And how will the department administer the birth control benefit policy to guarantee access to contraception without an additional co-pay for the employees of those organizations?

The only possible way would be, Justice Sotomayor argues, for the department to spend months and maybe years creating a costly and time-consuming database of every exempt organization and their corresponding insurer. The magnitude of such an undertaking is unfathomable. (Emphasis added.)

Does the Court intend for HHS [the department] to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third-party administrator nationwide?

Justice Sotomayor understands the coy strategy of the five male justices on the Court: This isn’t a case about balancing the right to contraception against the right to religious liberty. It’s a case about allowing Wheaton College’s beliefs about the effect of its actions to trump the democratic interest in allowing the government to enforce the law.

It would be death by bureaucracy for the birth control benefit.

It’s a smart strategy, because ultimately, if the government’s accommodation is a violation of religious liberty when applied to Wheaton College, then it is also a violation of religious liberty when applied to Hobby Lobby, or any religious entity or closely held corporation.

In other words, Hobby Lobby won the argument that it—a for-profit company—has religious rights. Now, the Becket Fund’s other clients appear to be winning the argument that their religious rights preclude the government from forcing them to fill out the requisite form in order to administer the birth control benefit. If Wheaton et al. win, then any closely held corporation claiming a religious objection to the birth control benefit could effectively boycott the benefit, and that part of the health law would likely become impossible to administer.

Which is why the Wheaton College injunction caused so much consternation from commentators, coming as it did just after the Hobby Lobby majority swore that their decision would not impede women’s reproductive rights.

“The effect of the HHS-created accommodation on the women employed by Hobby Lobby and other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost-sharing,” proclaimed the Court in its Hobby Lobby decision.

These statements seem as close to a solemn promise as we’re likely to see from this male-dominated Supreme Court that no matter what happens, women will still have contraceptive access without paying an additional co-pay.

But the question remains: how?

Ironically, many of the Becket Fund’s clients have argued that the least restrictive means for providing contraceptive access to women would be for the government to provide it to women directly.

By arguing so ferociously against the Obama administration’s contraceptive coverage policy, the Becket Fund has accidentally proven that a single-payer system would be superior to a cumbersome mish-mash of insurance regulations and exceptions to them.

And given conservative rantings against government take-over of health care, this may be greatest irony of all.