The federal government gave some leeway in its response to the Supreme Court in a case challenging Obamacare’s birth control mandate.
The court is weighing whether a compromise called an accommodation violates the religious beliefs of religious nonprofits such as charities and universities. In a court filing late Tuesday, the federal government said it was open to religious nonprofits not filling out a form that enables insurers to provide birth control to their employees.
Under Obamacare, all health plans have to provide birth control, but religious nonprofits objected, saying that violates their beliefs. So the administration made a compromise that requires the insurer to pay for the birth control coverage and not the employer.
But the 37 nonprofits, such as the Catholic charity Little Sisters of the Poor and University of Notre Dame, said under the compromise they are complicit in providing birth control to employees.
A short-handed Supreme Court heard oral arguments in the case in March and a week later asked for more information. Specifically, the justices asked on March 29 for both parties to suggest different procedures in whih the religious nonprofit would not be involved in providing birth control.
At the oral arguments, a key question was the role that the nonprofit plays in facilitating birth control coverage. Petitioners for the nonprofits referred to forms the nonprofits had to fill out to facilitate coverage. Regulations require employers to notify the federal government that they want the accommodation.
The Obama administration said the accommodation requires some form of “written self-certification, but do not mandate any particular form.”
The government is open to a different type of “written certification.” However, the administration was concerned about how such an approach would work for self-insured plans.
If an employer has a self-insured plan, the obligation to provide contraception coverage falls only on the plan since there is no insurer with a pre-existing duty to provide coverage.
The nonprofits, meanwhile, said in their filing that the federal government can provide birth control to employees without “requiring petitioners to surrender their health plans to serve as vehicles for the provision of contraceptive coverage.”
A decision by the Supreme Court is expected in June.
Currently, there are only eight justices on the court, after the death of conservative Justice Antonin Scalia.
If the court votes 4-4, the lower court’s ruling would stand. Nine courts have ruled on the birth control cases, eight of which went for the government and one for the nonprofits.
