Obama Administration Scrambling To Figure Out Hobby Lobby Alternative

July 5th, 2014

How should the Obama Administration handle the Court’s ruling in Hobby Lobby? They’re still figuring it out.

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.

Administration officials said they were determined to ensure the broadest possible coverage of contraceptives for the largest number of women without requiring employers to violate their religious beliefs.

Mark L. Rienzi, a lawyer who represented both Hobby Lobby and Wheaton College, said the administration had the tools to make an alternative solution work. “The government can find other ways to deliver contraceptives to people without forcing nuns and religious colleges to participate,” he said.

One point I should stress, that seems to have been missed in the debate. The Court didn’t cite the exemption for non-profits as a complete solution, but merely articulated that the government can accomplish the compelling interest of access to contraception by more narrowly tailored means than the mandate. Contrary to the dissents of Justice Ginsburg and Justice Sotomayor, the Court never made this representation.

So when the Administration figures it out, will Justice Sotomayor admit she was wrong that it was “impossible”?

That is not the way Justice Sonia Sotomayor looks at it. In her dissent in the Wheaton College case on Thursday, she said the challenge facing the government was “daunting — if not impossible.” …

Whatever the choice, no plan can be turned around in two weeks, or two months. It took more than two years for the administration to figure out how to provide contraceptive coverage for women at nonprofit groups that have religious objections. That arrangement allowed religious organizations to fill out a form that would transfer the delivery of free coverage under the Affordable Care Act to others.

Oh come on. Huge portions of Obamacare were rewritten with no notice by a blog post. When they want to act quickly, they can. I’m only being partly facetious. HHS has changed the requirement for insurance companies on the fly for two years when they want to. This is standard operating procedures.

Of course, as I’ve noted in a few places, the Administration lacks the statutory authority to impose this burden on the insurance companies. In my mind, the entire scope of administrative action is actually unconstitutional on these grounds.