- On Friday, the Obama administration issued a new set of rules designed to help women whose employers object to providing contraception acquire affordable birth control.
- The measure is intended to fix a gap in coverage created by the Supreme Court decision in Burwell v. Hobby Lobby. In June, the Supreme Court ruled that a closely-held company may be exempt from the ACA provision requiring that companies provide contraceptive coverage.
- Under the new regulations, for-profit companies will be able to have access to an "accommodation" under which insurers provide free contraceptive coverage without any financial involvement by the objecting employer. These kinds of accommodations were initially available only to religious non-profits, with houses of worship exempted from the contraceptive requirement entirely.
Some religious non-profits argue that even filing the form that actives that accommodation is a violation of their beliefs because it tacitly provides the very contraception they oppose. The Supreme Court suggested that these companies might write a letter directly to HHS, an avenue that has so far been accepted by objecting companies; Some lawyers, however, question whether or not this actually resulted in coverage for the affected employees. The new regulation stipulates that it does.
This regulation may be another step forward in the debate over access to contraception; However, today's announcement doesn't resolve anything. For one thing, the structure of the accommodation isn't set. HHS is actively seeking comment on how it should work for dissenting companies (193 of which have sued for an exemption from the contraception mandate).
On top of that, it's unlikely that this workaround will satisfy Hobby Lobby and others. As Georgetown Law professor Marty Lederman noted, "I think it is likely that most of those organizations will not be satisfied: They will argue that such a 'fix,' too, violates their rights under [the Religious Freedom Restoration Act], because their act of opting out will continue to establish the legal authority for the government to require another party to provide coverage."