Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever else might object to the certification requirement (including, I guess, Hobby Lobby, if the agency takes the Court's invitation to offer a similar accommodation to for-profits. (As has been noted, the *Hobby Lobby *decision may not make such a future holding likely, but it certainly does not foreclose the possibility.)
What could the government then do to ensure coverage of these forms of contraception (short of covering them directly, which seems politically untenable)? Four example, could it promulgate a rule as follows: - An employer that declines to provide such coverage for religious reasons must alert employees; - any employee may then file a form with the federal government (or the insurance company) attesting that the employer's plan will not cover the relevant contraception; - this notification from any employee then triggers the requirement that the insurance company provide coverage at no cost to all employees covered by the plan. Would this satisfy these religious employers? The difference between this and the current certification regime is that the employer doesn't file anything with the government; it merely provides information to the employees. Any employee can then decide what to do with that information--i.e. whether or not to file for coverage. I understand that this imposes an additional burden on at least one employee at the company to file the form. (And this rule is not what I'd prefer.) But as a practical matter, it would provide an avenue for the contraceptive coverage, and I imagine that some watchdog group could help employees navigate this. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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