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January 24, 2014

No, The Little Sisters Order Is Not "Really a Defeat" For Them

Just a quick mention here that several lefty blogs are sharing this post from UC-Irvine law professor Rick Hasen suggesting that "what looks like a victory against having to do a symbolic act may really be a defeat in having to do the nearly identical symbolic act."

First, here's the order:

Hasen writes:

So they win by not having to fill out the form. But they have now to send a letter containing essentially the same disavowal in order to not be covered. Presumably this triggers the very same thing: the insurance companies providing the contraceptive coverage directly.

Everything Hasen writes in the sentence beginning "Presumably" is incorrect, which is what happens when someone who apparently hasn't been following an issue starts a sentence with the word "presumably."

First, the coverage the Little Sisters object to is not triggered by giving HHS notification, as contemplated by the Supreme Court order. Rather, it is triggered "[i]f a third party administrator receives a copy of the self-certification," i.e., the accommodation form that organizations objecting to the contraception mandate have to fill out. You can check me on this, if you like (PDF). The Supreme Court order specifically says that the Little Sisters notification to HHS does not have to use the accommodation form or provide it to their third-party administrator. Thus, providing an alternative notification to HHS does not trigger the objectionable contraceptive coverage.

Also, contrary to Hasen, the insurance companies aren't even in this. The Little Sisters use a self-insured health plan, which has a third-party administrator, again as specifically stated in the Supreme Court order, not an insured group health plan. The different types of plans have different requirements.


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posted by Gabriel Malor at 06:24 PM

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