Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Little Sisters of the Poor are challenging the ACA's birth-control mandate. Photo: Diego M. Radzinschi. Little Sisters of the Poor are challenging the ACA’s birth-control mandate. Photo: Diego M. Radzinschi.

After receiving more than 54,000 comments on whether and how to accommodate objections from religious nonprofit groups to the health care law’s contraceptive insurance requirement, the Obama administration said it will not make any changes to the practices that were challenged—and left unresolved—in the U.S. Supreme Court.

Regulatory authorities on Monday said the thousands of comments “indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage.”

The U.S. departments of Labor, Treasury and Health and Human Services provided the update in an FAQ about the implementation of the Affordable Care Act, the landmark Obama administration law that now comes under threat from the Donald Trump administration and Republicans in Congress.

What happens next to the pending court challenges by the nonprofits may rest with the incoming Trump administration and the U.S. Department of Justice under the leadership of U.S. Sen. Jeff Sessions, the Alabama Republican picked to lead the agency.

“We have to get to business. Obamacare has been a catastrophic event,” Trump told The New York Times on Tuesday. He urged Republicans to repeal the law and offer a replacement within weeks.

Under the Obama administration’s accommodation, an eligible organization that objects to providing contraceptive coverage for religious reasons may self-certify its objection to its health insurance issuer or third-party administrator using a form provided by the Labor department. An organization is also permitted to self-certify its objection and provide certain information to Health and Human Services without using any particular form.

The nonprofits contend that even the writing of a letter to HHS made them complicit in the provision of contraceptives, in violation of their religious beliefs.

Federal regulators solicited the public comments after the Supreme Court in May sent seven challenges back to the lower courts to see if the government and the nonprofits could reach a compromise on how to accommodate the objections.

The justices indicated in their unsigned order in Zubik v. Burwell that based on additional briefing in the case, there appeared to be an opening for compromise. In an unusual step, the high court suggested its own possible compromise.

The federal agencies in their Monday update said the high court’s plan would not work.

“The comments demonstrate that a process like the one described in the court’s supplemental briefing order would not be acceptable to those with religious objections to the contraceptive-coverage requirement,” the agencies said. “Further, a number of comments illustrate that the administrative and operational challenges to a process like the one described in the court’s order are more significant than the departments had previously understood and would potentially undermine women’s access to full and equal coverage.”

Appellate courts put on hold a series of religious-objector cases to allow the agencies and lawyers for the challengers to craft the compromise plan. The Obama administration on Tuesday began notifying the courts about the impasse and requesting the chance to continue updating the court, into the early months of the Trump administration.

“So now that this has happened, during those next status conferences, the courts will say, `How are we going to proceed?’ The real question is what will a Sessions DOJ response be,” said Brigitte Amiri, senior staff attorney at the American Civil Liberties Union’s Reproductive Freedom Project.

Amiri added: “We are waiting to see whether the act is going to be repealed in whole or in part, and we don’t know what that means for the contraception requirement.”

In its Zubik order, the Supreme Court expressed no view on the merits of the claims that the government’s accommodation burdened the exercise of religion.

The commenters included the plaintiffs in Zubik and other religiously affiliated organizations, consumer advocacy groups, women’s organizations, health insurance issuers, third-party administrators and pharmaceutical benefit managers.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at customercare@alm.com

Lean Adviser Legal

Think Lean Daily Message

"A legal project is like a journey. I like to think of it as a plane journey, rather than say a road trip. On a road trip, you can change the destination midway, so resource planning is less important. A plane journey is not like that and neither is a legal project. It all starts with planning, meticulous planning."

Learn More


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2018 ALM Media Properties, LLC. All Rights Reserved.