On Wednesday, the Solicitor General filed the Obama administration’s brief in opposition to the certiorari petition of East Texas Baptist University and its co-plaintiffs challenging the so-called “accommodation” to the HHS contraceptive mandate. Buried in the Obama administration’s brief is an important admission that contradicts Seventh Circuit judge Richard Posner’s central claim in rejecting Wheaton College’s similar challenge. Specifically, the Obama administration acknowledges (p. 19):

If the objecting employer has a self-insured plan, the contraceptive coverage provided by its TPA is, as an ERISA matter, part of the same ERISA plan as the coverage provided by the employer.

This is the very proposition that Posner repeatedly—in Posner’s own words, “at perhaps excessive length”—denied in his ruling against Wheaton College (which has a self-insured plan). Indeed, his ruling rested on that mistaken denial, as these passages illustrate:

The Introduction to the college’s opening brief begins with the following inaccurate statement: “This case arises from the government’s effort to use Wheaton College’s health plans to distribute emergency contraceptive drugs.” And the first sentence of the reply brief states in like vein that “Wheaton has benefit plans, and the government wants to use them.” At oral argument the college’s lawyer insisted that the government was “using our plan” and “putting [additional terms] into our contract.” If Wheaton College is wrong, and the government is not trying to “use” the college’s health plans to provide insurance coverage for emergency contraceptives …, or to add terms to those plans, the college has no case.… Actually there are no efforts by the government to take over Wheaton’s health plans, as Wheaton contends.…
The contraception provisions of the federal Act and its implementing regulations do not alter or annex college or other institutional health plans that fail to provide coverage for some or all contraceptives.…
So when Wheaton College tells us that it is being “forced” to allow “use” of its health plans to cover emergency contraceptives, it is wrong.
Once informed by the government of the college’s objection, the insurers are required by the Affordable Care Act and implementing regulations to notify the members of the college community of their right to coverage by the insurers. In deference to religious sensibilities the government directs the insurers to separate notification to the community members from the insurers’ communications with them concerning the college’s health plans, and to include a statement that the college is not funding or administering contraceptive (in Wheaton’s case just emergency-contraceptive) coverage. 29 C.F.R. § 2590.715-2713A(d); 45 C.F.R. § 147.131(d). Call this “using” the health plans? We call it refusing to use the health plans.
The upshot is that the college contracts with health insurers for contraceptive coverage exclusive of coverage for emergency contraceptives, and the Department of Health and Human Services contracts with those insurers to cover emergency-contraceptive benefits. The latter contracts are not part of the college’s health plans, and so the college is mistaken when it tells us that the government is “interfering” with the college’s contracts with its insurers. The contracts, which do not require coverage of emergency contraception, are unchanged. New contracts are created, to which the college is not a party, between the government and the insurers.…
Almost the entire weight of its [Wheaton’s] case falls on attempting to show that the government is trying to “use” the college’s health plans, and it is this alleged use that it primarily asks us to enjoin. But the government isn’t using the college’s health plans, as we have explained at perhaps excessive length.

To be sure, the Solicitor General maintains that it’s fine to take over the self-insured plans of objecting employers in this way. But beyond refuting Posner’s ground, the SG’s concession shows that its purported distinction between self-insured plans, on the one hand, and ordinary insured plans and church plans, on the other, is illusory and irrelevant. As to the latter types of plan, the government maintains that the objected-to coverage isn’t part of the employer’s plan. But that claim simply distracts from the broader reality that in each instance the objected-to coverage builds on, and is not independent of, the employer’s plan. That is how the government says that it will achieve contraceptive coverage that is “seamless[]” (e.g., Brief at 24) with the employer’s coverage—by using the employer’s plan to make sure that the coverage comes from inside “the insurance coverage network” and can thus take advantage of the plan’s existing “coverage administration infrastructure.” (Quotes from p. 41328 here.) It is that coerced complicity that the employers challenge, and it is that broader reality that the appellate courts that have ruled against the challengers have so far ignored.​