By Kara Loewentheil
Back in August the Obama Administration responded to the Supreme Court’s opinion in Hobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.
These regulations were open for public comments, and PRPCP drafted comments on both rules that were signed by more than 60 prominent legal academics. Along with more than 40 corporate law scholars, we argued that “[t]he Supreme Court’s approach to corporate religious rights in Hobby Lobby was associational in nature: for-profit entities have religious rights because they are a collection of individuals with religious rights. In that sense the entity is merely the vehicle through which a group of individuals with religious rights exercises those rights in a collective manner.” Given that, we urged the Department to only allow for-profit entities that (1) were privately-held and limited to a certain size, (2) could produce evidence of their religious operating mission, and (3)produced evidence of a unanimous owner agreement to seek the accommodation annually.
In addition, along with more than 20 important scholars of law and religion, we submitted comments urging both HHS and DOL to create stringent monitoring and enforcement standards in order to avoid Establishment Clause violations. As we explained in our comments, “[s]tatutes like RFRA may exempt religious actors beyond what is constitutionally required, but only if they do not offend superior rights found in the Constitution. The Establishment Clause can be violated when . . . accommodations shift the burden of a religious observance from those who practice the religion to those who do not.” Because the accommodation process has the potential to impose burdens on affected employees – like delays or gaps in coverage – it is essential that the accommodation process truly be seamless. Otherwise there will only be more lawsuits ahead.