DC Appeals Court Delivers a Blow to the Contraception Mandate

HHS ordered to write a rule weakening mandate for religious employers

A Washington appeals court has ruled against the government on the question of whether religious employers can be forced to provide insurance providing contraception, without cost sharing, to employees. The government has construed the contraception to apply broadly to religious employers, exempting only those like churches that mostly cater to--and employ--members of the faith. Wheaton College, among others, sued. And now the appeals court has basically ordered HHS to write a regulation exempting those employers:

At oral argument, the government went further. First, it represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services. Oral Arg. Recording at 36:25 – 36:33. There will, the government said, be a different rule for entities like the appellants, Oral Arg. Recording at 37:25 – 38:46, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. Oral Arg. Recording at 35:39 – 36:02.

We take the government at its word and will hold it to it. Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.”

In essence, as Jonathan Adler notes, the court is ordering HHS to craft a rule weakening the contraception mandate, lest the court do it for them.

I can't help but wonder if this isn't the best outcome for the administration. This was always a controversy with more passion than substance: generic birth control is cheap, and of course, insurance doesn't make birth control free; it just means you pay the insurer rather than the pharmacy. But it sure did get people riled up.

This way, the administration can shrug and tell its base "We tried". The religious employers can go back to not providing birth control to their employees. And the rest of us can move on to something else.

Of course, it would be even better if we made birth control an over the counter drug. The need to take a day off work and go to the doctor probably looms larger for many cash-strapped women than the monthly cost of the pills. Making birth control an OTC drug would take the issue off the table because insurers wouldn't cover it. And more women would have easy access. It's one of the few policy proposals out there that is actually win-win.