As most readers will have learned by now courtesy of the mainstream and cable news media, the Supreme Court has again crafted a narrow ruling on an ObamaCare issue, this one the mandate on employers to fund certain contraceptive measures that they may find objectionable on religious grounds.
So, if Obama picks up his pen to deal with this setback to the grand design of the Patient Protection & Affordable Care Act, what will his prescription look like?
At the law blog The Volokh Conspiracy, contributer Jonathan Adler has a post up that takes an educated guess. A key excerpt:
The easiest and most rapid response would be for the Department of Health and Human Services (HHS) to provide objecting for-profit employers with the same accommodation offered to religious institutions. Indeed, the very existence of this accommodation undermined the administration’s position before the Supreme Court, as it was hard to simultaneously argue that there was no less restrictive way to provide access to contraception while providing just such an alternative to religious institutions. Expanding the accommodation would be relatively easy, and could be done quickly through an interim final regulation.
The accommodation offered to religious institutions shifts the obligation to pay for contraception coverage from the employer to the insurer. This may well satisfy many objecting employers, but it might not work for all of them. First, some employers self-insure, making insurer and employer one and the same. Second, some Catholic institutions object to the accommodation because it requires them to sign a form and interact with the insurer to facilitate the required contraception coverage.
As to requiring the insurers to pay, many pundits have already pointed out that this would be a distinction without a difference, as the insurer would simply pass on the associated cost to the employer through the insurance premiums. And in fact, this reality is likely to be addressed by SCOTUS in the Little Sisters Of The Poor cases (non-profit organizations), which will be decided next year.
Adler goes on:
A more direct way to enhance contraception coverage would be for the federal government to provide such coverage directly. Yet while Congress could authorize such a program, it is not clear that HHS has the authority to take this step on its own. I am not aware of any provision in the PPACA or other law that would authorize appropriations for this purpose. Of course, were HHS to try and take such a step unilaterally, it’s not clear who would have standing to challenge the move.
A final step the administration could take would be to enhance access to contraception by making all forms of oral contraception available over-the-counter without a prescription …
For the complete post, click HERE.