Obama administration looking for Plan B for, er, Plan B after Hobby Lobby

Narrowly decided?” The White House apparently knows better than to buy into the media’s rush into a comforting consensus over the applicability of the Hobby Lobby decision. The New York Times reports today that the Obama administration has begun looking into large-scale alternatives to the HHS contraceptive mandate after the Supreme Court blew a big hole in it this week:

The Obama administration, reeling from back-to-back blows from the Supreme Court this week, is weighing options that would provide contraceptive coverage to thousands of women who are about to lose it or never had it because of their employers’ religious objections.

The administration must move fast. Legal and health care experts expect a rush to court involving scores of employers seeking to take advantage of the two decisions, one involvingHobby Lobby Stores, which affects for-profit businesses, and the other on Wheaton Collegethat concerns religiously affiliated nonprofit groups. About 100 cases are pending.

One proposal the White House is studying would put companies’ insurers or health plan administrators on the spot for contraceptive coverage, with details of reimbursement to be worked out later.

Another would give the administration itself a larger role in offering cost-free coverage to women who cannot get it through their employers, although the option for a new government entitlement appears unrealistic for financial and political reasons.

The White House is under such pressure that no one has been able to work out details of how the alternatives would be financed or administered.

No one bothered before now to look into a Plan B for, er, Plan B and coverage for other contraceptives? Granted, there have been conflicting rulings from district and appellate courts on this issue, but the large majority of rulings foreshadowed both Hobby Lobby and Wheaton College. The Becket Fund for Religious Liberty, which has been fighting these cases on behalf of business owners, has this helpful infographic to show the lopsided results so far:


The problem for the administration before now was that any alternative would have proven Becket Fund and other attorneys for business owners correct. Under the RFRA, HHS had to argue that their current mandate both served a compelling governmental interest and that their solution was the least burdensome method to serve that interest in relation to the right to free religious expression. Had they been working on another, intermediate solution such as those outlined in this article, the courts would have chewed up HHS and spit out the contraception mandate and its so-called “accommodation” long before now.

In fact, that’s exactly what Justice Samuel Alito did by highlighting the “accommodation” that never got offered to Hobby Lobby or other for-profit businesses. That reference was initially misunderstood as an endorsement of the accommodation, but it was instead a demonstration of the failure of HHS to meet the “least burdensome” test. The injunction for Wheaton College strongly suggests that the accommodation will fall too, at least in part because it’s still not the least burdensome way that the government can serve their interest in providing contraception for free, and perhaps because scrutiny on that claim may eliminate even that basic issue for reasons I described in my Fiscal Times column this week:

Contraception in almost all of its forms is inexpensive and widely available. Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.

Besides, there is no crisis in accessing contraception. As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.

Furthermore, even if this were some kind of contraception-access crisis in the US, HHS chose the most burdensome method of addressing it. The federal government already subsidizes contraception for low-income Americans through Title X; the Obama administration or Congress could have expanded that program. They could have reclassified birth-control pills as over-the-counter rather than requiring a prescription, as Bobby Jindal and other Republicans have proposed.

Instead of trying those intermediate remedies, HHS instead forced employers and their insurers to provide contraception for free regardless of their religious beliefs, while at the same time arguing hypocritically that any resistance to that idea was tantamount to interfering in a private transaction between a woman and her doctor.

The White House knows this. Their sudden desire to find a completely new workaround for the HHS contraception mandate shows that they’re not buying the “narrowly decided” hype now. Now that they’ve lost, they are going back to the drawing board in a way which future courts can cite to show just how far off the mark the Obama administration was in satisfying the RFRA in the first place. The desperate attempt to redraft the HHS contraception mandate is a surrender to a complete loss.

Addendum: By the way, the administration’s argument that contraception should be free because it saves money has also run into reality, which the NYT notes in its conclusion:

The situation is more complicated when employers self-insure. There, the administration says, outside plan administrators may obtain a “compensating reduction” in the fees paid by insurers to participate in the insurance exchanges established by the health care law. Those adjustments, the administration has said, will not cost much.

Some religious organizations are using that arrangement. But employee benefits experts said it was not working well, in part because insurers and third-party administrators have had to foot the bill for contraceptive coverage without any immediate offset or reimbursement. …

The Obama administration says the cost of providing contraceptives will be offset by savings that result from greater use of birth control, “fewer unplanned pregnancies” and improvement in women’s health. But, Mr. Condeluci said, “It may be years before the savings are realized.”

If ever. This was part of the White House’s argument that contraception is preventive medicine, on par with vaccinations and regular exams, except those actually prevent disease. They save money because the costs of disease are (a) substantial and dramatic, (b) near term, (c) always unplanned, and (d) not a lifestyle choice being merely postponed rather than entirely avoided. All of the costs for contraception are incurred up front, while the savings are theoretically occurring over 20-30 years, and even then only if the consumer chooses to have no children ever. Even so, insurers have to raise enough money in premiums in the current year to satisfy up-front outlays, so “free” contraception will raise premiums no matter what.