The very large number of lawsuits launched by religious nonprofits and by companies of conviction continue to work their way slowly through the courts. Currently in the for-profit cases, 33 injunctions have been granted and 6 denied, and Hobby Lobby and Conestoga Woods are awaiting Supreme Court oral arguments on March 25. In the nonprofit cases, 19 injunctions have been granted with only 1 denied. (See the HHS mandate information central page maintained by the Becket Fund for Religious Freedom.)

Meanwhile, a remedial conscience bill sits in the House, but with no motive power (H.R. 940 – Health Care Conscience Rights Act; Rep. Diane Black, R-TN). And although the federal government has delayed the implementation of many requirements of the health reform law, the contraceptives mandate has emphatically not been one of them.

One potential alternative is a “church plan,” an insurance plan designed to cover the employees of a church or association of churches. Church plans are subject to a unique set of rules and, at least for now, are not subject to the contraceptives mandate. Non-church nonprofits can be included in a church plan, but only if these other organizations are “controlled by or associated with” the church or association of churches.

The Southern Baptist church plan, GuideStone, and the many ministries insured by it, has won an injunction against the mandate; and one of the current high-profile cases–the Little Sisters of the Poor–also involves a church plan.

The federal government has stated that the mandate probably does not extend to church plans, but it has not affirmed that such plans will never be subject to the mandate. Further, the government has asserted that even though church plans are not covered by the mandate, objecting nonprofit religious organizations insured through them must sign a document that not only certifies their objection but also, through the simple mechanism of the signature, authorizes others to pay for those same contraceptives (even though, because it is a church plan, the administrator does not have to actually pay for the contraceptives).

And there is that other issue: to be eligible to join a church plan, the other organizations have to be “controlled by or associated with” the church or association of churches. Some faith-based service organizations do have such an association with a church–consider a k-12 school operated by a church or a camping association that is governed by a denomination–but many others do not. They may, instead, be broadly Christian or evangelical, or the initiative of an ecumenical network of Christian and Jewish congregations but not governed by it, or a religious nonprofit that includes clergy on its board but is not formally governed by any congregation or denomination, etc. Even if the “church plan” option is not closed off by a future decision of the federal government, it is not an actual option for many faith-based organizations, much less for companies of conviction (because they are not tax-exempt).

Another possible alternative is faith-based health care sharing ministries, such as Samaritan Ministries. (See the Alliance of Health Care Sharing Ministries.) In these ministries, participants who need help paying their medical expenses appeal to the other participants for donations. These ministries specifically are not defined or regulated as health insurance, and they are not subject to the contraceptives mandate. They are also not an easy alternative for an employer who, for reasons of conscience, objects to arranging conventional health insurance with its contraceptives mandate. The employer could drop conventional insurance (paying an annual penalty per employee, unless the company is small), raise employee salaries, and propose that the employees join one of the health care sharing ministries.

But that’s just the point: persons and families have to individually apply to be included in these plans, and the plans make individualized decisions, deciding, most importantly, whether the applicant meets the belief and behavior requirements of the plans. These are, after all, formalized ways that Christian brothers and sisters can bear each other’s health-care burdens. An employer, in short, cannot ditch BlueCross and buy a health care sharing plan for its employees.