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HHS Issues Another Rule on Contraceptive Mandate

| Jul 10, 2013 | News
The Department of Health and Human Services (HHS) has finally issued its hotly debated contraceptive mandate.
Under the Affordable Care Act, religious non-profits such as hospitals, universities, or charities would have been required, starting in August 2013, to provide health insurance that includes contraceptive coverage for female enrollees.

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However, the new HHS rule states that religious organizations objecting to contraceptive coverage “will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds.” In order to ensure women receive preventive care without additional costs, contraceptive coverage will need to be “separately provided to women enrolled in their health plans at no cost.”
According to the new HHS rule, a “religious organization” that is eligible for this exemption is any non-profit organization that considers itself a religious organization and has religious objections to providing contraceptive coverage.
The new rule will force insurers to bear the costs of contraceptives for female employees in these eligible organizations.  Nevertheless, HHS predicts that insurers will “find that providing contraceptive coverage is at least cost neutral” because the health benefits to women will outweigh the additional costs of preventive services.
Still, organizations on both sides object.  Eric Rassbach, counsel for Becket Fund for Religious Liberty, described the new rule as “the same old, same old.” Rassbach maintains that the rule “doesn’t solve the religious conscience problem because it still makes our non-profit clients the gatekeepers to abortion and provides no protection to religious businesses.”
The ACLU has issued a half-hearted approval of the HHS rule.  While that organization “supports the administration’s commitment to ensuring that women receive coverage for contraception,” it “does not believe special accommodations for non-profit employers are needed.”
The battle will likely continue in the courts.
According to Reuters, over sixty lawsuits have been filed opposing the mandate.  In fact, just one day before HHS announced the final rule, the U.S. Court of Appeals for the 10th Circuit decided that Hobby Lobby, a for-profit craft shop run by a religious family, had a legitimate argument in its challenge to the law’s contraceptive coverage mandate and sent the case back to the trial court for further hearings.
Leland Beck, who writes for Federal Regulations Advisor, foresees “serious litigation” over the contraceptive coverage mandate and believes the issue might eventually come before the Supreme Court.
HHS’s new rule represents the latest in a long series of rulemakings, amendments, and litigation.  In August 2011, HHS issued interim guidelines requiring all group health plans include contraceptive coverage.  One exemption applied to “religious employers,” essentially defined as churches and other houses of worship.  Religious non-profit organizations would have one year to comply with the rule.  Then, in January 2012, HHS extended that deadline to August 1, 2013.
Religious rights advocacy groups and the Catholic Church were outraged that the administration never expanded the definition of “religious employer” beyond churches, such as to include religiously affiliated hospitals or schools.
The controversy really erupted during President Obama’s reelection campaign.  In February 2012, the president claimed he had reached a compromise and a few days later, HHS published another rule.
But as PPR’s Cary Coglianese pointed out at that time, the “compromise” Obama announced was really just a pledge to work further with religious organizations to enact a new rule in the future.
The rule HHS issued at that time contained the same language as the August 2011 rule, still dictating that a religious employer could only gain exemption if he or she, among other requirements, “primarily employ[ed] persons who share the religious tenets of the organization.” Many of the large religious non-profits did not meet these criteria.
By February 2013, after a year of lawsuits and lobbying from both sides, HHS issued another notice of proposed rulemaking, this time seeking to accommodate religious non-profits.  On July 2, that rule became final, with its terms to take effect on August 1, 2013.

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