Portside

For most of the last year, the Supreme Court has forced the Obama Administration into an elaborate dance, where the Court hands down orders casting doubt upon the administration’s efforts to ensure that all women have access to affordable birth control — while simultaneously implying that everything would be fine if the administration just designed their birth control policy a different way. Friday, the administration is expected to announce a new policy that appears designed to end this dance and force the justices to rule definitively on whether employers with religious objections to birth control effectively have the power to restrict their employees’ access to birth control coverage, no matter how the government structures its regulations.

Up until now, the administration’s rules treated non-profit and for-profit employers as separate entities. Religious non-profits who object to birth control could exempt themselves from the requirement to offer contraceptive care to their employees by filling out a specific form that informs the government of their objection, and sending a copy of the form to their insurance provider or administrator. In most cases, once the non-profit employer submitted this form, their insurer would then contract separately with their workers to ensure that those workers had contraceptive coverage. These non-profit rules spawned one round of litigation brought by religious non-profit organizations which claim that even being required to fill out a short form violates their religious liberty.

Meanwhile, for-profit employees were required to comply with their legal obligations to their employees. Prior to the Supreme Court’s June decision in Burwell v. Hobby Lobby, which significantly reworked the balance of power between employers and employees, the law was clear that for-profit businesses could not invoke their owners’ religious beliefs to exempt themselves from their legal obligations to their workers. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court held in its 1982 decision in United States v. Lee, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Hobby Lobby, of course, was the culmination of a second round of litigation brought by for-profit employers whose owners have religious objections to birth control. And it effectively eliminated the protections Lee extended to workers, at least with respect to federal law.

In both the non-profit cases and the for-profit cases, the Supreme Court has issued decisions suggesting that it would totally be fine for the Obama Administration to guarantee that most women in the workplace have contraceptive health coverage, if only they would do a better job of designing their regulations. Last January, for example, the Court temporarily exempted an order of nuns from the requirement that they fill out the form they are required to fill out in order to obtain an exemption from the birth control rules. Yet the Court’s order in that case also required the nuns to “inform the Secretary of Health and Human Services in writing” of their intention to seek the exemption if they wanted to invoke it. The implication was the the form itself was somehow problematic, and everything would be fine if the Obama Administration had just required non-profit employers to use a different method to inform the government that they are invoking the exemption.

Meanwhile, the Hobby Lobby opinion granted many for-profit employers a religious exemption from the birth control rules, but it also strongly implied that everything would be fine if the Obama Administration had only applied the same regime it applies to non-profit employers to for-profit employers as well. That is, all would be good if, instead of requiring Hobby Lobby to offer birth control coverage directly, Hobby Lobby should instead fill out a form and send a copy of it to their insurer, and then that insurer would provide coverage to Hobby Lobby’s workers. The implication this time around was that the administration’s fill-out-the-form solution struck an appropriate balance between protecting women in the workplace and also shielding religious liberty, and that it would be upheld by the Court.

Only a few days later, however, the Court handed down another order suggesting that the fill-out-a-form solution wasn’t actually a solution at all. In Wheaton College v. Burwell, the justices granted a Christian college a temporary exemption from the requirement than they fill out the form — once again holding that the college could simply “inform[] the Secretary of Health and Human Services in writing” that they wish to invoke the exemption. In dissent, Justice Sotomayor accused the Court of shifting the goal posts just days after Hobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

So the Obama Administration could be forgiven if it believes that it has been cast in the role of Charlie Brown, and that the Supreme Court has assigned itself the role of Lucy while she is holding a football. Nevertheless, the new regulations the administration is expected to announce Friday appear to rest on the assumption that the Court can be taken at its word, and that if the administration provides virtually every accommodation to religious objectors that the justices have thus-far demanded, then its newest round of regulations will be upheld.

According to the Wall Street Journal, the new regulations provide that “institutions would have to tell the federal government which company administers their health-insurance plan, and the government would then contact that administrator to ask it to arrange contraception coverage for the institution’s employees. The administrator would likely turn to a traditional insurance company to fund the benefits, and the insurance company would later be reimbursed by the federal government.”

In other words, the new regulations honor Hobby Lobby‘s suggestion that the justices will tolerate a program that places the obligation to cover contraception in the hands of the insurer, not the employer. And they honor Wheaton College‘s suggestion that, even if a particular form is objectionable, employers can still be required to inform the government that they are seeking an exemption from the law using some other method.

The one remaining question is whether the Court will tolerate the new rules’ requirement that religious employers “tell the federal government which company administers their health-insurance plan,” a requirement that goes beyond the obligations the Court imposed in its Wheaton College order. The employers who have raised the staunchest objections to birth control have often claimed that they cannot take any action that will set in motion a chain of events that leads to someone receiving contraception, as doing so would make them “complicit” in the act of providing birth control. If the justices are determined honor even this idiosyncratic objection, then it is unclear that the administration could provide any accommodation that would survive Supreme Court review.

Such a holding, it should be noted, would gut a key limit on federal religious liberty law. Under the Religious Freedom Restoration Act, which was the statute the Court relied upon in Hobby Lobby, the federal government may not “substantially burden a person’s exercise of religion” except in certain circumstances. But if requiring someone to write a two sentence letter naming an insurance company can be a “substantial burden,” then anything can be a substantial burden. It’s difficult to imagine a less burdensome act that could be imposed upon someone then requiring them to toss off a letter they could probably draft in 30 seconds.

In any event, however, the Obama Administration’s new rules will likely put an end to the Supreme Court’s ability to move the goalposts every time someone raises a new objection to the administration’s policy. The administration has now crafted its rules to comply almost to the letter with the requirements suggested by previous Supreme Court opinions. Now, the rest of the country will have to wait to find out whether Hobby Lobby actually permits this latest set of rules — or whether the language in that decision leading the Obama Administration in this direction will simply end with Lucy pulling away the football one more time.