Government Concedes That HHS Contraceptive Accommodation “Could Be Modified”
In its supplementary brief issued yesterday, the government said the accommodation “could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation.”
That striking admission, accompanied by a lot of grumbling, raised a red flag for Michael McConnell, a leading authority on religious freedom at Stanford University law school. In comments cited in an April 13 post on The Volokh Conspiracy blog at the Washington Post, McConnell said the justices’ question “put the government in a bind. If it answered ‘yes,’ it would effectively be admitting to a RFRA violation. But if the government said ‘no,’ it would be appearing unwilling to work with the Court on a solution that will satisfy both sides.”
It should come as no surprise that the brief submitted by the Little Sisters’ lawyers adopted a brighter tone.
“The answer to [the justices’] question is clear and simple: Yes,” read the brief, which applauded the court’s apparent desire to explore new options.
While the government’s allies have framed the Little Sisters’ objections as an attempt to impose their religious beliefs on their employees, and so bar access to contraception, the brief dismissed the political spin.
So long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed.