Religious Groups Remain Concerned About Contraception Mandate

Religious nonprofits won't have to pay for contraception coverage under ObamaCare, but their employees must be offered the benefit, the Department of Health and Human Services confirmed Friday in a rule-making proposal.

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REUTERS/Eric Gaillard

An illustration picture shows a woman holding a birth control pill at her home in Nice January 3, 2013.

Religious nonprofits won’t have to pay for contraception coverage under ObamaCare, but their employees must be offered the benefit, the Department of Health and Human Services confirmed Friday in a rule-making proposal.

The announcement was mostly a codification–not a change–from the somewhat tangled religious exemptions that the administration proposed last year. Under the framework, houses of worship, like mosques and churches, would not be required to offer contraceptive coverage to employees. But the employees of other religious nonprofits, like Catholic hospitals and evangelical colleges, would get contraception coverage, though it would be paid for by insurers, not employers. For-profit companies would be required to pay for contraception coverage themselves, even if the owners objected on religious grounds.

The announcement Friday expended the definition of religious nonprofits who could benefit from insurer-funded contraception, and offered new options and procedures for self-insured religious non-profits that do not want to shoulder the direct cost of contraceptive coverage. But the new proposal left in place its most controversial elements, earning more praise from Planned Parenthood than from the Catholic Church and conservative evangelicals.

The announced rules offer no relief for private for-profit companies, whose owners object to contraception. The Christian-run crafts store Hobby Lobby, for example, has filed suit against the administration, saying it should not be required to pay for insurance that covers treatments that violate its owner’s beliefs. More than 40 other lawsuits have been filed by both secular non-profits and religious for-profits, claiming that the mandate violates their religious beliefs.  “Today’s proposed rule does nothing to protect the religious liberty of millions of Americans. The rights of family businesses like Hobby Lobby are still being violated,” says Kyle Duncan, General Counsel at the Becket Fund. “The Becket Fund continues to study what effect, if any, the Administration’s proposed rule has on the many lawsuits currently pending on behalf of non-profit religious organizations like Ave Maria University, Belmont Abbey College, Colorado Christian University, East Texas Baptist University, EWTN, Houston Baptist University, and Wheaton College.”

Cardinal Dolan of the United States Conference of Catholic Bishops was also cautious upon hearing about the rule. He issued only a very short statement: “We welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later.”

Liberal groups, by contrast, were effusive. Catholics United executive director James Salt called the announcement “a victory not only for the Obama administration, but for the Catholic Church” and “a good day for Americans.” Women’s groups Planned Parenthood and NARAL Pro-Choice America both applauded the measure, with the caveat that they would review the technical aspects of the proposal to ensure a woman’s rights were protected, no matter who her boss is.

The idea that birth control coverage would still be available for women whose religiously-affiliated employers object to it is by no means new. TIME’s Kate Pickert wrote about it on Swampland almost a year ago to the day.

In the face of mounting pressure from Catholic leaders and politicians, the White House on Friday tweaked its position on contraception coverage mandates in the Affordable Care Act. Rather than require large religious institutions like Catholic colleges and hospitals to provide employees with free health insurance coverage for contraception, insurance companies themselves will have to pick up the tab. “We fought for this because it saves lives and it saves money,” President Obama said in a midday appearance at the White House. “As we move to implement this rule, however, we’ve been mindful that there’s another principle at stake here. That’s the principle of religious liberty.’”

Here’s how the new rule will work: A Catholic hospital will provide health insurance to employees that does not include contraception; the insurance company servicing the hospital will reach out to female employees and offer contraception or contraception coverage without any copays or coinsurance. At least one powerful Catholic organization has already endorsed the change.

On a conference call with reporters, senior Administration officials pointedly called the change an “accommodation,” not a compromise, and said that the new policy had actually been in the works for a long time. This seems unlikely, given that this more nuanced contraception setup has been floating around in policy circles for months and the Administration opted to initially present a more stringent set of insurance guidelines for religious organizations.

The time lapse between the initial policy and its new and improved version allowed a major political storm to develop. Despite the best efforts of Catholic power players in the Obama Administration, the President appears to have made his original decision based on women’s rights, but also on politics. As I and others have previously written, it seemed – on paper – that requiring large Catholic institutions to provide free contraception to employees would be a net political positive. By a fairly thin margin, U.S. Catholics agree with the President’s position; an even larger margin of support than among women.

You can read her full story here.

The new proposal will be open for public comment for the next 60 days, after which the final rule will be published. The issue is then likely to be litigated in the courts.