The New HHS Regulations Can’t Win A Zero-Sum Game


Posted on August 23rd, 2014 by Kara Loewentheil
 1 comment  

Yesterday the Obama Administration released the long-awaited updates to the regulations that govern the availability of an accommodation for religious objectors to the Affordable Care Act’s contraceptive coverage requirement. They came in two parts:

1. A final interim regulation that allows objecting religiously-affiliated organizations who decline to fill out the original form required for an exemption to instead notify the government in writing that they object and to provide the government the contact information for their insurance company or third-party insurer.This, in effect, is the Wheaton College regulation. After such notification is received HHS will then take on the responsibility of contacting  that insurance company or third-party insurer to inform them that they must provide contraceptive coverage to the eligible employees at no cost to the employer in question. This regulation is effective immediately, but comments may be submitted for 60 days, after which a final regulation will be issued (which may or may not end up differing from the interim final regulation).

2. A proposed regulation to govern the process for closely-held corporations or non-corporate-form businesses to seek an accommodation from the contraceptive coverage requirement. This is the Hobby Lobby regulation. Under the regulation, closely-held for-profit businesses that object would have access to the same accommodation as non-profit organizations (i.e., the insurance company or third-party insurer must provide the coverage at no cost to the eligible employees or the company). The regulation is not in effect yet, and the government is actively seeking comments as to a number of elements, including how the regulations should define a closely-held corporation, and how the administering departments should evaluate the existence and scope of a religious objection (if at all). Comments may be submitted for 60 days, after which the government will issue a final regulation.

If you’re interested in the details of how this will all work, logistically, Marty Lederman has written up a nice concise explanation here; no reason to reinvent the wheel on that score. What I want to draw attention to in this post is the fact that none of these accommodations will satisfy the objectors who seem to believe that any type of notification to the government makes them impermissibly complicit in what they believe to be a sin. This may well turn out to be some of the for-profit businesses as well as some of the non-profit organizations. As I explained when the order was issued, this was always a problem with the logic of the Wheaton College order, and nothing in these accommodations will solve that problem. Instead, at least some of the plaintiffs will continue to maintain their suits on the grounds that nothing apart from a full exemption will satisfy their religious obligations, and the courts will likely end up drawing the line somewhere, which makes the entire Wheaton College order and all this rigamarole seem fairly silly. If courts are going to have to end up telling these plaintiffs that they have to notify the government in some way even if they believe that violates their religious beliefs, then it’s hard to understand why the Supreme Court shouldn’t have just required them to fill out the original form and be done with it. The alternative, that courts will eventually grant blanket exemptions to some of these plaintiffs, is an unacceptable outcome given the great harm that such an exemption would impose on the women covered by the insurance plans at issue.

Kara Loewentheil is the Director of the Public Rights / Private Conscience Project and a Research Fellow at Columbia Law School. You can find out more about the Project at http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project

One comment

  1. Hi to all! i have an interest website without gender problems – http://vipnetgame.com

Add a comment


Comments are subject to moderation and do not necessarily reflect the opinions of
Columbia Law School or Columbia University.

FEATURED POSTS

CATEGORY CLOUD

"Homeland" Security Abortion Rights Adoption adultery Affordable Care Act Alien Tort Claims Act Amicus Brief Asylum Bankruptcy BDS Bullying Census Politics Children Citizenship Civil Unions Columbia Law School Compulsory Marriage Condoms Contraception Contraception Mandate Cordoba House Criminal Law Cures for Homosexuality Defense of Marriage Act Disability Rights Discrimination Divorce Domestic Partnership Domestic Violence Domestic Workers Don't Ask Don't Tell Economic Justice Education Egypt Elections Employment Discrimination ENDA Estate Planning Events Family Law Fellowships femininity Free Speech Gender and Technology Gender Identity Discrimination Gendering the Economy GSL Online Haiti Hate Crimes Health Care Hilary Clinton Hillary Clinton HIV HIV Discrimination Hobby Lobby Homelessness Homophobia Housing Human Rights Identity Politics Illegitimacy (sic) Immigration Reform In-ing Incest India International Law Islamophobia Israel Justice Sotomayor King & Spalding Labor Trafficking Land Reform Law School Legal Profession Legal Scholarship Lesbian & Gay Parenting LGBT Parenting Marital Status Discrimination Marriage Masculinity Medicaid Michelle Obama Migration Military National Security Obama Administration Obama Appointments Outing OWS Palestine Parenting Pinkwashing Policing Politics of the Veil Polyamory Popular Culture Pornograpy Pregnancy Presidential Politics Prisons Privacy Products Liability Profanity Prop 8 Prosecutorial Discretion Publications Public Rights/Private Conscience Queer Theory Queer vs. Gay Rights Race and Racism Racial Stereotyping Rape Religion Religious Accommodation Religious Exemption Religious Freedom Restoration Act Religious Fundamentalism Reproductive Rights Reproductive Technology RFRA Romania Rwanda Sartorial Commentary Schools Sex Discrimination Sex Education Sex Stereotyping Sexting Sex Trafficking Sexual Assault Sexual Duplicity Sexual Harassment Sexual Health Sexuality and Gender Law Clinic Sexual Orientation Discrimination Sex Work SMUG Sodomy Law Reform Sports Supreme Court Surrogacy Technology Title IX Trafficking Transgender Uganda Uncategorized Violence Women and Poverty Women of Color Zimbabwe

Academic Calendar  |  Resources for Employers  |  Campus Map & Directory  |  Columbia University  |  Jobs at Columbia  |  Contact Us

© Copyright 2009, Columbia Law School. For questions or comments, please contact the webmaster.