Posted by Curt on 23 August, 2014 at 11:33 am. 1 comment.


Ed Morrissey:

After getting stung two months ago by the Hobby Lobby decision, the Obama administration had to go back to the drawing board to salvage the HHS contraception mandate. Late yesterday, HHS announced a new “accommodation” that supposedly will pass court muster after the Supreme Court decision, but will it? The new regulation offers for-profit businesses the same mechanism it had previously offered non-profits, and offering non-profits a more direct way of rejecting contraception coverage:

Effective immediately, the U.S. will start allowing faith-affiliated charities, colleges and hospitals to notify the government — rather than their insurers — that they object to birth control on religious grounds.

A previous accommodation offered by the Obama administration allowed those nonprofits to avoid paying for birth control by sending their insurers a document called Form 700, which transfers responsibility for paying for birth control from the employer to the insurer. But Roman Catholic bishops and other religious plaintiffs argued just submitting that form was like signing a permission slip to engage in evil.

In a related move, the administration announced plans to allow for-profit corporations like Hobby Lobby Inc. to start using Form 700. The Supreme Court ruled in June that the government can’t force companies like Hobby Lobby to pay for birth control, sending the administration scrambling for a way to ensure their employees can still get birth control one way or another at no added cost.

How serious is this proposal? Well, offering it in a Friday night document dump certainly doesn’t instill much confidence in the effort. Why not roll this out during a substantial news cycle? After all, the Hobby Lobby decision was a high-profile loss by the White House, so offering something under the media radar should raise suspicions about just why the administration wants to push this out in the most low-profile manner possible.

At first blush, HHS seems to have created at least one of the same problems that the Supreme Court noted. The Hobby Lobby decision didn’t even get to the issue of whether the regulation violated the First Amendment rights of business owners, but instead hinged on the second threshold of the Religious Freedom Restoration Act (RFRA). The first threshold tests to see whether a regulation “substantially burdens” religious expression, which the court held it did:

The second threshold is whether the government used the least-burdensome method of satisfying a compelling state interest (we should note that the court didn’t address whether the interest was compelling in Hobby Lobby, either).

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