White House craters on contraceptive coverage

Jun 29, 2013 by

Washington — The Obama administration issued its final compromise Friday for religiously affiliated charities, hospitals and other nonprofits that object to covering birth control in their employee health plans.

After considering more than 400,000 comments, administration officials refused to budge on the basic principle.

In fact, the final rule largely hews to a proposal that the Department of Health and Human Services unveiled in February. But administration officials said they hoped that small changes in the regulations would satisfy critics. Those changes are designed to simplify the process of ensuring that nonprofit, religiously affiliated employers do not have to pay for contraceptives while their female employees have access to them.

“There is a much brighter line, a simpler line,” said Mike Hash, who heads the Office of Health Reform at HHS.

The final rule appears unlikely to quiet critics, however. The framework in the regulation has drawn strong criticism from Catholic bishops, Republican lawmakers and private companies with devoutly religious owners, several of whom are suing to block the requirement.

“Unfortunately, the final rule announced today is the same old same old,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, which represents several plaintiffs suing to overturn the contraceptive mandate. “As we said when the proposed rule was issued, this doesn’t solve the religious conscience problem because it still makes our nonprofit clients the gatekeepers to abortion and provides no protection to religious businesses.”

For-profit businesses with more than 50 employees will be required to provide health coverage that includes contraceptive benefits, even if the employer has moral objections to such benefits.

The administration has been sued 65 times over the birth control requirement, including 33 cases filed by for-profit companies, according to the National Women’s Law Center, a nonprofit in Washington that supports insurance coverage for contraception. Twenty companies have been granted an injunction or other temporary relief from the requirement while the cases wind their way through courts, the center said.

At least one of the cases is expected to reach the Supreme Court.

“Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other nonprofit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work,” HHS Secretary Kathleen Sebelius said in a statement. The rule was issued by HHS, the Labor Department and the Internal Revenue Service.

The Obama administration’s effort to accommodate religious objections to contraception has been one of the most delicate tasks of implementing the Affordable Care Act. The law requires health plans to cover many preventive services without any cost-sharing for patients, such as cancer screenings and physicals. Also included are FDA-approved contraceptives for women, including emergency contraceptive pills.

Fighting over issue

That has generated controversy almost from the moment that Obama signed the legislation in 2010. The administration proposed a solution in 2011, but church leaders said that it was too restrictive. It exempted religious organizations only if they met several tests, including a requirement that they primarily serve people who share their faith.

Under the final regulations, a house of worship is exempt from the contraceptive mandate, as long as it qualifies as a tax-exempt religious employer.

The administration took a different approach to try to address concerns from hospitals, charities and universities that have religious affiliations but primarily provide nonreligious services to people of many faiths. Many of those employers object on moral grounds to providing contraceptive coverage.

The administration designed a complex system to insulate those employers from having to pay for the contraceptive coverage or even arrange for it.

Employers that object to contraception will notify the insurance companies that provide their coverage. The insurer will then have to offer the employees a separate contraceptive benefit at no cost to the employees.

The process will be even more complicated for self-insured religiously affiliated employers that provide health benefits themselves and rely on insurers only to administer their health benefits. In those cases, the insurance companies will also have to provide a separate contraceptive benefit. But the companies will be able to recover some of these costs from the federal government.

The rule formally takes effect Aug. 1. But the administration gave nonprofit employers an additional five months to adjust to the new regulations by having it apply to plan years beginning on or after Jan. 1. Other employers have been required to make contraceptive coverage available to their workers since last August.

The Catholic Church prohibits the use of artificial contraception. Several Roman Catholic dioceses have filed suits seeking relief from the regulations.

Evangelicals generally accept the use of birth control, but some object to specific methods such as the morning-after contraceptive pill, which they argue is tantamount to abortion and which is covered under the policy.

The U.S. Conference of Catholic Bishops, which has spearheaded opposition to the policy, responded to the ruling. “We have received and started to review the 110-page final rule,” New York Cardinal Timothy Dolan said in a statement. “It will require more careful analysis. We will provide a fuller statement when that analysis is complete.”

Oklahoma-based Hobby Lobby Stores Inc. is the largest and best-known of the businesses that have sued.

On Thursday, the 10th U.S. Circuit Court of Appeals in Denver allowed the lawsuit to move forward on religious grounds. On Friday, the retailer was excused by a federal judge from paying up to $1.3million a day in fines for not providing coverage.

Supporters voice approval

Women’s advocates applauded the regulations as a milestone that could have a profound effect on the education and economic opportunities of women, including college students.

“Birth control is basic health care for women, and this policy treats it like any other kind of preventive care,” Planned Parenthood President Cecile Roberts said in a statement.

Judy Waxman of the National Women’s Law Center, an advocacy group based in Washington, said she would prefer women hear directly about the coverage from their insurer, but her organization could accept the plan. “It’s fair,” she said.

Sen. Patty Murray (D-Wash.) said: “Today’s ruling strikes a fair balance between religious liberties and the reproductive rights of all women. Access to contraception shouldn’t be dictated by a woman’s employer.”

White House makes small changes in requirement for contraceptive coverage.

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