President Obama is weighing executive actions after the Supreme Court ruled against ObamaCare’s contraception mandate.
The White House swiftly called on Congress to enact a legislative fix but realistically knows lawmakers aren’t about to act.
But the GOP criticism and threat seem unlikely to act as a brake on Obama, who separately on Monday said he would move forward with administrative actions on immigration reform in the face of what he described as GOP obstructionism.
“As we assess the impact of this decision, we'll consider whether or not there is a range of other options that may be available that don't require legislative action,” White House press secretary Josh Earnest told reporters.
Democrats signaled in the hours after the high court’s decision that they think the issue could boost their turnout in the fall by highlighting GOP opposition to abortion rights. That makes it even more likely that Obama will not fear taking executive steps.
And beyond that, the Supreme Court’s justices appeared to be offering their blessing for a regulatory fix.
In a 5-4 decision in the case generally known as Sebelius v. Hobby Lobby, the court ruled that closely held companies — those that are owned and controlled by a very small number of people — are covered by the Religious Freedom Restoration Act (RFRA), which guarantees that, “government shall not substantially burden a person’s exercise of religion.”
The birth control mandate violated that law and does not apply to those closely held firms that harbor a religious objection, the court found.
Both the majority opinion, drafted by Justice Samuel Alito, and a concurring opinion, penned by Justice Anthony Kennedy, suggest that an accommodation already offered to some religious nonprofits could be extended to closely held firms.
The arrangement allows a third party or “middleman” such as an insurance company to cover the contraception coverage, at no expense to the employer, for female employees seeking it.
“That accommodation equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs,” Kennedy wrote.
The accommodation itself is the subject of a separate legal fight that some view as destined for the Supreme Court. In that case, the Little Sisters of the Poor Home for the Aged, a Colorado-based order of nuns, argues that the accommodation is unconstitutional.
Still, extending the accommodation to include closely held businesses appears to be the path of least resistance for the administration.
“The most obvious next move is to have HHS adopt a regulation — perhaps even an emergency regulation, as authorized by law — saying that the accommodation provided to religious nonprofits is now available for for-profits covered by the Hobby Lobby decision,” Harvard Law professor Mark Tushnet said.
Alternatively, the president could issue an executive order requiring that all contractors who work for the federal government provide contraception coverage.
But that wouldn’t cover Hobby Lobby, the craft store chain at the center of Monday’s ruling, which wouldn't fall in that category because it doesn't have a government contract.
Yvette Fontenot, who helped draft the Affordable Care Act as an aide to then-Senate Finance Committee Chairman Max Baucus (D) and helped implement it as deputy director of the HHS Office of Health Reform, said the ruling does not change the law’s requirement that workers have access to cost-free contraception.
She agreed that an administrative fix is far more likely than congressional action but said even that would take time, to the detriment of female workers who could be temporarily denied free contraception.
“Any workaround is going to rob at least some women of the rights guaranteed to them,” said Fontenot, who now works at the government affairs firm Avenue Solutions.
Just how many women could be affected by the ruling is unclear, as observers and the justices themselves differ over its scope.
In the majority’s opinion, Alito stressed that the ruling applies only to the contraception mandate, not other parts of ObamaCare, such as blood transfusions or immunizations, to which some companies might harbor religious objections.
But that won’t likely stop a cascade of lawsuits challenging other parts of that or other federal laws, said UCLA law professor Adam Winkler.
“The effect of the decision is to open the courthouse door to those claims,” he said.
And while repeatedly emphasized that the ruling affects only companies, it does not define them, beyond they are owned and controlled by members of a single family.
The Internal Revenue Service says a business is closely held if five or fewer people hold more than half of the value of its outstanding stock, a threshold that would include roughly 90 percent of American companies and more than half of the workforce, according to research.
Justice Ruth Bader Ginsburg went even further, arguing in her dissent that the decision’s logic extends to all companies.
For-profit companies could decide to press the limits of their religious protections under the RFRA, said Duke law professor Darrell Miller.
“Although the majority is careful to say that Hobby Lobby is limited to the contraception issues in Obamacare, I don't see how that kind of distinction can be maintained,” Miller said.
The administration will have to factor those questions as it calibrates its response to the ruling. Tread too lightly, and Obama risks seeing a provision of his signature law weakened.
But unilateral action perceived as overzealous could be politically perilous during an election year in which the president’s party is desperately clinging to control of the Senate.
Already the White House is reeling from last week’s Supreme Court ruling that a series of Obama’s appointments to the National Labor Relations Board were unconstitutional.
Faced with those competing pressures, the White House’s took a cautious posture Monday.
“Frankly, we're still assessing the decision and its legal implications,” Earnest said, later adding that, “as we gather some more information, we may be in a position to better consider the range of options that are available to the president.”