Written by: Ken Fallon
The Obama administration on Friday proposed new rules that it said would alleviate concerns by religious organizations opposed to paying for contraceptive insurance coverage.
The Department of Health and Human Services is facing dozens of lawsuits and hundreds of plaintiffs, from both non-profit and for-profit organizations, that object to contraception on religious grounds. The new rules, seen as trying to stave off some of those lawsuits, eliminates criteria that previously required that a religious employer could only qualify for an exemption if its primary role was to instill religious values and if it employed and/or served people of that religion. The new rules more closely follow the Internal Revenue Service definition of a church.
Under the new health care proposal, a religious employer that objects to paying for contraceptive coverage would request an exemption from the government. Any employee wishing contraceptive coverage could join a free plan directly from the insurance company, which would pay for the coverage. The employer would not have to “contract, arrange, pay or refer” for any such coverage.
“Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns,” said Health and Human Services Secretary Kathleen Sebelius in a written statement.
However, the rule does not resolve the issue of private for-profit employers who object to paying for contraceptive coverage. Critics also charge that it fails to adequately accommodate religious non-profit organizations such as colleges or hospitals, as well as self-insured religious groups.
Friday’s change is not dissimilar to changes announced last year, in which the insurance companies would pay for coverage rather than the employer directly. However, then as now, critics suggested it was an empty gesture because their health insurance premiums still would go into the same pool, which would be used to pay for the contraceptives they opposed. In addition, they argued that their premiums would likely still increase since the insurance companies would not pay for contraceptive coverage without increasing other costs elsewhere.
Additional costs incurred by health-insurance company or health care administrators would be offset by a fee of 3.5 percent of each policy premium sold through a government-run health insurance exchange. Those fees could be passed on to consumers.
In its release Friday, the HHS argued that the new rules would be “cost neutral” because of fewer childbirths and improvements in women’s health.
Religious conservatives oppose any method of birth control that prevents a fertilized egg from implanting in the womb, thus terminating the pregnancy. It would force them to violate their consciences, they argue, for the government to require they financially subsidize such methods. They argue that such mandates violate their religious freedom under the First Amendment.
The Becket Fund for Religious Liberty, which is representing several parties in lawsuits against the mandated rules, issued a statement saying it was “extremely disappointed” in the proposal.
“Today’s proposed rule does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby,” said Kyle Duncan, general counsel for the Becket Fund.
Hobby Lobby, an arts and crafts retail chain, is one of the highest-profile opponents to the HHS rules. Evangelical Christian David Green, who runs the Oklahoma-based company, said in a Dec. 1, 2012 letter to supporters that the company would incur government fines of up to $1.3 million per day if it complied with the rules. “Being Christians, we don’t pay for drugs that might cause abortions, which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill,” he wrote. “We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the Biblical principles on which we have run this company since day one.”
A month later, after Supreme Court Justice Sonia Sotomayor upheld the 10th Circuit Court’s denial for an injunction in the Hobby Lobby case even though other courts had granted such injunctions, Green announced he would refuse to comply with the mandate. A week later, the company announced it would shift the plan year for its health insurance by several months in order to buy time to fight the mandates.