Those who favor women being guaranteed no-cost birth control coverage under their health insurance say the new rules for nonprofit religious organizations issued by the Obama administration simply put into force what the Supreme Court suggested last month.
“We interpret what [the administration] did to be putting into effect that order,” said Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center. She’s referring to the controversial Supreme Court order in a lower court case involving Wheaton College, a Christian school in Illinois.
The unsigned order agreed to by six of the nine justices said Wheaton College need not fill out and send to its insurance company a form opting out of offering the coverage. Instead, it could merely inform the government of its objections.
The new rules unveiled Friday require those with religious objections to providing some or all FDA-approved contraceptives to do exactly that – notify the government rather than their insurance carriers that they cannot provide the coverage. Many religious organizations had complained that filing the form to their insurance companies, which would then provide the coverage using other funds, would make them “complicit” in providing the benefit. Under the new regulations, the government would subsequently be responsible for notifying insurers, which would then arrange contraceptive coverage.
Religious groups and their attorneys have reacted mostly negatively to the new rules.
“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 a statement from the U.S. Conference of Catholic Bishops. “Instead, the regulations would only modify the ‘accommodation,’ under which the mandate still applies and still requires provision of the objectionable coverage,” the statement said.
Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which is representing many of the religious organizations suing over the rules, said it’s not yet clear how those organizations will respond to the new option.
“They have no objection to telling the government they are opposed to providing the coverage,” she said in an interview. “The question is what happens next.” Under the new rules, the government “still does use their administrators and their health care plans” to make coverage available, she said.
But that is exactly what the Supreme Court suggested should happen, said Waxman of the women’s law center.
“The order said nothing will prevent women from getting [benefits] and that’s what HHS did,” she said. “They said based on the order there’s an alternative route for nonprofits.”
Indeed, while the Court said that Wheaton College could send its letter of objection to the government rather than its insurer, the order went on to say: “Nothing in this order precludes the Government from relying on this notice, to the extent it considers necessary, to facilitate the provision of full contraceptive coverage under the [Affordable Care] Act.”
Some experts had worried about the government’s ability to facilitate the coverage due to the intricacies of ERISA, the federal law that governs pension and health benefits. But the interim rules explicitly give the government the ability to make benefit changes in the absence of the objecting religious organizations.
The rules also address the Court’s ruling in the case involving Hobby Lobby, a for-profit company whose owners objected to providing some forms of contraception.
As suggested by the five-justice majority in that case, the rules allow “closely-held” companies to also opt out of offering coverage, using the same work-around available to nonprofits. But the rules specifically solicit public comment on what exactly constitutes a “closely-held corporation,” since there are varying definitions.