The administration’s next steps and the next legal challenges go hand in hand.

By Sam Baker

The White House can soften the Supreme Court’s blow to Obamacare’s contraception mandate—but not without raising the stakes for the next round of lawsuits aimed at the policy.

In a 5-4 decision, the high court said Monday that certain businesses must be able to opt out of the birth-control mandate based on their owners’ religious beliefs. Now the White House is looking for ways to ensure that as many women as possible still have access to the benefits spelled out in the Affordable Care Act—even if their employers opt out.

The most obvious option: Let for-profit companies like Hobby Lobby take advantage of a partial exemption the administration has already created, in response to other concerns about religious freedom. In fact, the Supreme Court suggested that option several times in Monday’s ruling.

But there’s a risk the Supreme Court could strike down that option in a year or two—meaning the administration’s effort to fix an illegal mandate could turn out to be illegal, too.

The justices noted several times on Monday that religious-affiliated employers, like Catholic hospitals and universities, already have a sort of middle-ground option on the contraception mandate. The White House granted those employers an “accommodation” in response to their religious objections to certain forms of birth control.

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.

“The way the Court says RFRA works seems to doom the accommodation,” Rienzi said. “The government’s argument in the nonprofit cases is very similar.”

The only workable alternative, Rienzi said, would be for the government to pay for contraception coverage itself—another alternative Alito mentioned.

“I don’t think many of them would be complaining about that result,” Rienzi said.

But supporters of the contraception mandate said the government won’t need to go that far. They believe the HHS accommodation will pass legal muster, even though the justices avoided addressing it directly on Monday.

“It would be surprising if the Court touted this alternative, apparently less-restrictive means of meeting the government’s compelling interest in providing contraception coverage and then later ruled that it was too restrictive,” Wydra said.

Justice Anthony Kennedy seemed particularly open to resolving Hobby Lobby’s claims through an extension of the nonprofit accommodation. He filed a brief concurring opinion that focused almost exclusively on the other options HHS has.

By requiring companies like Hobby Lobby to provide contraception coverage, Kennedy wrote, HHS was “distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.”