The Supreme Court specifically mentioned that accommodation in its Hobby Lobby ruling, citing it as proof that the administration can advance its policy goals without forcing all employers to pay for contraception coverage.
Health and Human Services "has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty," Justice Samuel Altio wrote for the majority.
That might seem like Alito providing a clear alternative for the White House: Just use the accommodation you've already created.
Under the HHS policy for religious-affiliated employers, all contraceptives approved by the Food and Drug Administration still have to be included in employees' health care plans, without any cost sharing for the worker — the same terms that apply to most companies. But religious-affiliated employers don't have to pay for that coverage or do anything to facilitate it. Those duties fall to the insurance companies that administer their plans.
The same setup might work for Hobby Lobby, Alito said.
"The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost-sharing," Alito wrote.
But even as the Supreme Court kept suggesting the HHS "accommodation" as an option for Hobby Lobby and other for-profit companies, it didn't specifically say whether that policy is legal — and it's the subject of the next legal battle over the contraception mandate.
"It's rather odd that the Court relies in no small part on this potential accommodation, but then notes that it hasn't yet opined on the legality or sufficiency of that accommodation," said Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center.
Fifty-one religious nonprofits have filed lawsuits against the birth-control mandate, according to the Becket Fund for Religious Liberty, which is coordinating the legal campaign against the policy. Those plaintiffs say the HHS accommodation is inadequate and still violates their religious freedom. (They were the first to start challenging the birth-control mandate; cases from for-profit employers just happened to make it to the Supreme Court first.)
Mark Rienzi, the Becket Fund's senior counsel, said he believes the accommodation will also fall if and when it gets to the Supreme Court. Even though Alito made several references to the policy as a less-burdensome alternative, Rienzi said he was encouraged by the ruling's broader explanation of why the contraception mandate violates a 1993 law called the Religious Freedom Restoration Act.