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A new religious liberty accommodation for non-profit organizations?

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July 24, 2014

The White House announced plans on Tuesday to release a new accommodation for non-profit religious groups within the Affordable Care Act’s contraception mandate. A senior White House official explained, “This is part of ensuring that all women have access to contraception coverage.”

While the mandate already contains an accommodation, religiously affiliated groups have found it to be problematic. Under the current accommodation, groups desiring to opt out of providing certain contraception coverage to employees must fill out a religious exemption form. In filing the form, objecting institutions are agreeing that an insurance company will cover the contraceptives instead. Some recipients of the accommodation believe this action amounts to little more than an “accounting gimmick.”

The gimmick amounts to insurance companies saying they provide the contraceptives at no extra charge to the objecting institution. Those costs, however, are often made up in other areas, like increased premiums. Sarah Torre writes in a post for The Heritage Foundation, “By the [Obama] Administration’s own admission, there’s no guarantee that the funds collected by insurance companies from a religious employer’s premium payments won’t then be used to cover abortion-inducing drugs and contraception.”

Wheaton College was one of many institutions to protest the current accommodation. They felt by filling out the form they would still be involved, albeit indirectly, in providing contraceptive coverage. The Supreme Court has temporarily granted Wheaton an exemption from providing the required contraceptive coverage to its employees. According to CNN, “the new revisions to the Obamacare mandate reveal that the White House is anticipating the U.S. Supreme Court’s finalization of the temporary injunction in the coming months.”

The issues involved are the same, but this accommodation does not involve businesses like Hobby Lobby (a for-profit business). In light of the Hobby Lobby ruling, though, it appears The White House is trying to preemptively address objections of religiously affiliated groups before they (The White House) lose at the court level once more. Again, this is somewhat speculative, as are the terms of the new “accommodation” the White House is pledging.

A new accommodation may provide that the federal government would directly give contraception coverage to the employees of objecting institutions. Such an action would signal that, in keeping with the Supreme Court’s ruling, the government has not fully exhausted its options for pursuing coverage by the least restrictive means available, which it is required to do under the Religious Freedom Restoration Act. But these proposals remain speculative, so observers must be patient.

Supporters of religious liberty should remain vigilant as the official rule is announced. However, the appearance of a new accommodation suggests that the White House is backpedalling on its original stridency and this may give religious liberty advocates reason to be optimistic.