by Stanley Carlson-Thies

On July 10, 2015, the federal government published yet another set of regulations concerning the HHS contraceptives mandate, intended to comply with the requirement that it respect the religious freedom of non-church organizations while it pursues its goal of ensuring widespread access by women to contraceptives. But these regulations, too, are sure to be challenged on religious grounds.

These are the final versions of regulations first proposed a year ago. One set is a response to the Supreme Court’s Hobby Lobby decision (June 30, 2014), in which the Court ruled that the Religious Freedom Restoration Act (RFRA) protected the owners of Hobby Lobby and Conestoga Woods when they excluded for religious reasons from their employee health plans certain contraceptives that they regard to be abortifacients. These are all closely held companies, and in protecting the freedom of the companies not to include the contraceptives, the Court said that it was protecting the freedom of the companies’ owners to follow their religious convictions about contraceptives. Further, the Court said that the federal government could not force the companies to include the contraceptives because clearly there was at least one other way to ensure access to the contraceptives without imposing such a heavy burden on the religious exercise of the owners.

That other way was the “accommodation” the government offers nonprofit religious organizations, which, unlike churches, are not exempt from the mandate. In the accommodation, a religious nonprofit organization with an objection to some or all contraceptives fills out Form 700 and gives it to its insurance company or to a third-party administrator (TPA) if it self-insures. The form instructs the insurer or TPA to exclude those contraceptives-and then requires the insurer or TPA to pay for the exact same contraceptives and to inform the objecting organization’s employees that they have full and free access to those very contraceptives.

The Supreme Court did not rule that this accommodation was a sufficient alternative for Hobby Lobby and other objecting companies, only that it might be and that the federal government had not even explored the possibility.

However, just a few days after the Hobby Lobby decision, the Supreme Court made an interim ruling in response to a request from Wheaton College that it be excused on religious conscience grounds from having to file Form 700. Filing Form 700, the college argued, was little different than simply having all the contraceptives be included in its health plan, for when it filed the form, it both received a promise from the insurer or TPA that the college’s insurance plan would exclude morally objectionable contraceptives and set in a motion a legal requirement that the insurer or TPA would provide coverage of just those contraceptives to the college’s women employees. The Court agreed to the extent of releasing Wheaton College from the contraceptives mandate as the courts work through the religious freedom issues. The college, as the Court observed, had already told HHS that it was a religious organization and that it had a religious objection to coverage of some of the contraceptives, although it had not used Form 700. And, the Court said, even without Form 700, the government could ensure that Wheaton’s insurer or TPA would provide the contraceptives coverage.

In response to these two Court rulings, the federal government issued “interim final regulations” providing for an alternative accommodation to Form 700-this was its response to the Wheaton ruling. And it issued a notice of proposed rulemaking that solicited definitions of a closely held corporation and ways to provide an accommodation for closely held companies that, like Hobby Lobby, objected to some or all contraceptives. Its alternative accommodation method permits Wheaton College and other religious nonprofits that object to filing Form 700 instead to notify HHS of the objection to contraceptives while providing to HHS information on the insurer or TPA, so that the government can be sure that the insurer or TPA will provide the contraceptives coverage directly to the employees.

In the final regulations just issued, the federal government provided a definition of a closely held company and then (a) finalized the alternative accommodation method and (b) changed the definition of the kinds of organizations that can utilize the accommodation-now it includes both religious nonprofit organizations and closely held companies whose owners have a religious objection to some or all contraceptives.

So now religious nonprofits that objected to filing Form 700 have confirmation that they can, instead, alert HHS about their objection, and leave it to HHS to contact the insurer or TPA. And closely held companies that, like Hobby Lobby, object to including some or all contraceptives in their health plan can utilize either of the “accommodation” alternatives.

And yet these final regulations will surely not actually be final. Many religious nonprofit organizations have already objected to the alternative accommodation method. In fact, not long before these final regulations were issued, three religious educational institutions had already petitioned the Supreme Court to rule that neither of the two accommodation methods actually lifts the religious burden from objecting religious nonprofit organizations.

Here’s a summary of what Houston Baptist University, East Texas Baptist University, and Westminster Theological Seminary have said to the Court.

In your Hobby Lobby decision, you clearly ruled that what is critical in these cases about religious burdens is whether the organization with the religious claim sincerely believes that it has been asked to act in a way that violates its religious convictions. If there is such a sincere belief, and if the consequence for not doing what the government requires is the imposition of a heavy penalty-violating the contraceptives mandate can result in hundreds of thousands of dollars of fines annually even if the organization is not very large — then a court must accept that the organization’s religious exercise has been substantially burdened, and now the government has a tall task to be able to proceed with its requirement.

But, the petitioners say, the federal appeals courts are ruling in a different way than this. Many religious organizations have protested that the two accommodation methods are not acceptable-not meaningfully different than just directly including the contraceptive coverage in their health plans. Whichever accommodation method an objecting organization uses, the result is the same: its insurer promises health insurance coverage that excludes certain contraceptives and then, as required by the federal government, the insurer immediately provides exactly coverage of those contraceptives to the same employees. The accommodation does not enable them, as their convictions require, to offer their employees health insurance that excludes drugs and procedures that can kill nascent life. Instead, it is their very insurer or TPA that provides coverage for those very drugs and procedures, and that coverage is by law triggered by the very forms that supposedly enable the organizations to obtain acceptable insurance. So, according to their sincere religious belief, the accommodation methods are no better than simply being required to have the coverage in the health plans from the start.

But the appeals courts are not accepting these religious claims. Instead, the appeals judges are ruling that there is no substantial burden because the judges-though not the religious organizations-believe that the accommodations do resolve the religious problem. Just file the paper-surely that does not make the organization complicit in the coverage, the judges say. And since the judges regard the accommodations to be suitable, they are denying the religious organizations their claim of a religious burden. The appeals judges are substituting their own religious judgement for that of the religious organizations-exactly what they are forbidden to do.

So the Supreme Court is now being asked to intervene, to accept the sincerity of the claims of these three religious education institutions-and many others-that the accommodations are not acceptable. If so, then the accommodations do not resolve the religious freedom problem for the religious nonprofits or for the closely held companies that have religious objections.

And then the final regulations will prove to be just another in a long line of proposed, finalized, modified, and amended contraceptives mandate regulations.