WASHINGTON — The Obama administration, reeling from back-to-back blows from the Supreme Court this week, is weighing options that would provide contraceptive coverage to thousands of women who are about to lose it or never had it because of their employers’ religious objections.
The administration must move fast. Legal and health care experts expect a rush to court involving scores of employers seeking to take advantage of the two decisions, one involving Hobby Lobby Stores, which affects for-profit businesses, and the other on Wheaton College that concerns religiously affiliated nonprofit groups. About 100 cases are pending.
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.
That is not the way Justice Sonia Sotomayor looks at it. In her dissent in the Wheaton College case Thursday, she said the challenge facing the government was “daunting – if not impossible.”
Still, the administration has another motivation to act, as quickly as possible: It is eager to court the votes of women dismayed by the rulings. The Democratic National Committee is already urging voters to fight back against the Hobby Lobby decision, and to “stand up for Obamacare” in the November elections. The Supreme Court said family-owned for-profit corporations like Hobby Lobby were not required to provide coverage of contraceptives if they objected on religious grounds.
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.
But many of the nonprofit groups say that even notifying an insurer of their objections through the opt-out form would make them complicit in a moral wrong. Some consider all contraception to be wrong; others object only to devices and drugs like the morning-after pill that they believe may cause abortions.
One of those groups was Wheaton College, a Christian liberal arts school in Illinois, and the Supreme Court granted it a temporary exemption in the ruling Thursday.
That move divided the court along gender lines, with Justices Ruth Bader Ginsburg and Elena Kagan joining Sotomayor’s unsparing dissent. They said the court majority had endorsed the opt-out form just three days earlier in the Hobby Lobby case, in which Justice Stephen G. Breyer joined the three female justices in dissent in the 5-4 ruling.
The court’s conservative majority – all men – was sanguine about the availability of other ways for the administration to deliver coverage for every form of birth control approved by the Food and Drug Administration.
Yet officials are struggling to make sense of a sunny sentence in the court’s order Thursday exempting Wheaton from the opt-out form. “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA-approved contraceptives,” the majority said in the unsigned opinion.
It said Wheaton could merely notify the government of its religious objections in writing rather than send the opt-out form to its coverage providers.
The difference sounds trivial. But it could create quite a roadblock for the Department of Health and Human Services, Sotomayor wrote in dissent. “Does the court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption?” she asked. She questioned whether the government was supposed to create “a database that tracks every employer’s insurer or third-party administrator nationwide.”
Wheaton said it would have no difficulty sending a notice to the secretary of Health and Human Services.
The contraceptive coverage requirement is just one of many provisions in rules adopted under the Affordable Care Act, but it has become one of the most significant, both politically and symbolically, overshadowing many other important provisions.
In early 2011, Obama administration officials said they wanted to require insurers to offer contraceptives to women free.
The administration has made progress toward its goal, as millions of women have gained access to birth control without co-payments or other charges. But in the process, the administration has become entangled in scores of court cases, fighting with priests and nuns and other religious believers over details of the health insurance coverage they provide and receive.
The battles are sure to continue for a year or more, with religious objectors emboldened by victories this week. Justice Samuel A. Alito Jr., in writing the majority opinion in the Hobby Lobby case, said it seems likely that the cost of providing the four drugs and devices that many religious groups object to “would be minor when compared with the overall cost” of the health care law.
Alito wrote approvingly of the idea of shifting contraceptive costs to insurance companies, calling it “an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”
But on Thursday the majority made the cost-shifting much harder to accomplish. The general idea is to require insurance companies and plan administrators to deliver coverage when they are told about an employer’s religious objections. They would bear the costs or receive reimbursement from the government.
The situation is more complicated when employers self-insure. There, the administration says, outside plan administrators may obtain a “compensating reduction” in the fees paid by insurers to participate in the insurance exchanges established by the health care law. Those adjustments, the administration has said, will not cost much.
Some religious organizations are using that arrangement. But employee benefits experts said it was not working well, in part because insurers and third-party administrators have had to foot the bill for contraceptive coverage without any immediate offset or reimbursement.
“They are not being paid, and they have no prospect of being reimbursed,” said Christopher E. Condeluci, a lawyer for the Self-Insurance Institute of America.
The Obama administration says the cost of providing contraceptives would be offset by savings that result from greater use of birth control, “fewer unplanned pregnancies” and improvement in women’s health. But, Condeluci, said, “It may be years before the savings are realized.”