Birth control mandate: HHS offers new way for religious employers

The Obama administration announced an accommodation Friday aimed at ensuring access to free birth control for women who work for religious employers. But religious groups expressed skepticism. 

Pablo Martinez Monsivais/AP/File
A demonstrator holds up a sign outside the US Supreme Court in Washington on June 30, 2014. Seeking to quell a politically charged controversy, the Obama administration announced new measures Friday to allow religious nonprofits and some companies to opt out of paying for birth control for female employees while still ensuring those employees have access to contraception.

The Obama administration took steps Friday it said would ensure that women who work for religious employers will have continued access to cost-free birth control coverage, while respecting the views of their employers.

The rules address both religious nonprofits and “closely held” for-profit corporations whose owners have moral objections to some or all forms of birth control.   

The first rule applies to nonprofits and sets up a new pathway for employers to provide notice of their religious objection. Now, effective immediately, eligible organizations may notify the Department of Health and Human Services (HHS) directly of their objections, and HHS and the Department of Labor will then notify insurers and third-party administrators to allow the insured to receive separate coverage of contraceptive services. Such services would be provided at no additional cost to enrollees or employers.

Examples of such nonprofits include Catholic and other religious universities, hospitals, and charities.

In the second move, HHS is soliciting comments on how to extend the same accommodation to certain “closely held” for-profit corporations. In June, the US Supreme Court ruled that the administration could not impose the contraception mandate in the Affordable Care Act on the owners of closely held companies such as Hobby Lobby, a chain of arts-and-crafts stores. The administration is still working out the definition of “closely held for-profit company.”

“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” HHS Secretary Sylvia Burwell said, in a statement. “Today’s announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by nonprofit organizations and closely held for-profit companies.”

The birth control mandate in Obamacare has spawned dozens of lawsuits, on the grounds that it is an unconstitutional infringement of religious freedom.

Advocates for religious employers said they would review the new rules before issuing an assessment. But the United States Conference of Catholic Bishops expressed “disappointment” in the rules.

“On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate,” said Archbishop Joseph Kurtz of Louisville, Ky., president of the bishops conference, in a statement.

Instead, he said, the regulations would only modify the “accommodation,” under which the mandate still applies.

“Also, by proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” Archbishop Kurtz said.

The Becket Fund for Religious Liberty, which represents numerous organizations challenging the birth control mandate, issued a preliminary response.

“This is [the] latest step in the administration’s long retreat on the HHS mandate,” said Lori Windham, senior counsel for the Becket Fund, which is based in Washington. “It is the eighth time in three years the government has retreated from its original, hard-line stance that only ‘houses of worship’ that hire and serve fellow believers deserve religious freedom.”

Two months ago, the Supreme Court ruled 5 to 4 that closely held for-profit companies like Hobby Lobby cannot be forced to provide their employees with birth control that violates their religious beliefs. Hobby Lobby, a family-owned corporation, objected to two forms of morning-after pill and two forms of intrauterine device, saying they could cause early abortions.

Soon thereafter, the Supreme Court sided with Wheaton College, an evangelical school in Illinois, over its objection to the Obama administration’s accommodation for religious nonprofits that object to the birth control mandate. Such nonprofits have the option of signing a form that authorizes their insurer to provide contraception. The federal government then reimburses the insurer.

Wheaton and other religious groups say that signing the form makes them complicit in the provision of contraception that violates their beliefs. 

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