HHS tries new modifications to contraceptive coverage rules

by Vinnie Rotondaro

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Late last month, the U.S. Department of Health and Human Services issued a new round of modifications to a federal mandate requiring employers to provide contraceptive care to employees under the Affordable Care Act.

In keeping with modifications past (this is the eighth), the new rules have triggered yet another dustup in the ongoing fight between religious liberty advocates and the Obama administration, even as their effects remain unclear.

The feud began in 2012 when the mandate first went into effect, and came to a head this spring with the controversial Burwell v. Hobby Lobby Supreme Court decision, which exempted the religiously devout owners of a "closely-held" for-profit corporation from having to pay for certain kinds of employee contraception under the Affordable Care Act.

In facilitating the June 30 decision, the Supreme Court directed the corporation's owners to an accommodation that had previously been offered to religious nonprofits, whereby a refusal form is signed and a third-party insurer picks up the cost.

Days later, matters were taken a step further when the Supreme Court issued a temporary injunction relieving Wheaton College, a Protestant liberal arts school in Illinois, from having to sign the form at all. The school had argued that the act of signing the form and transferring the responsibility of providing contraceptive care was morally equivalent to administering it in the first place.

Since that time, a scramble for understanding has taken place as to what the legal decisions might mean for other lawsuits involving faith-based nonprofits and "closely-held" for-profits -- and it is on the heels of these legal decisions that the new mandate rules were issued.

Announcing the new rules Aug. 22, HHS Secretary Sylvia Burwell said: "Today's announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by non-profit organizations and closely held for-profit companies."

Asked for a breakdown of the new rules, what they are and what they do, an administration insider wrote in an email:

"We finalized a policy addressing the Wheaton College ruling. This means that nonprofit, religious affiliated institutions have another path to object to coverage by alerting HHS, rather than their insurance company with a government form, which is what Wheaton objected to doing. The court said that Wheaton could notify the government without having to fill out the form or tell their insurance company. This final regulation we issued codified that ruling and applied it to all other organizations seeking an accommodation in this area."

Additionally, "we proposed a new regulation (not finalized) to extend the accommodation given last year to nonprofit religious institutions to close-held, for profit companies, addressing the Hobby Lobby decision. Our proposal is not final and we are soliciting comments on a number of items, including what 'closely held' may mean."

In other words, HHS did two things: It standardized the procedure for religious schools and nonprofits that want to object to the contraception mandate without signing a form, and it began to explore how that overall procedure could be extended to religious owners of for-profit corporations.

How the new rules will affect the 48 pending lawsuits involving for-profit companies that are currently challenging the mandate, nobody knows.

"It will likely be several months before we know what the final rule looks like," Lori Windham, senior counsel for the Becket Fund for Religious Liberty, wrote in an email. "We may not know for some time how the family business owners will react to that rule."

Will the new rules satisfy the concerns of nonprofit groups like Little Sisters of the Poor, who object to the form and are represented by the Becket Fund?

"The Little Sisters of the Poor and other religious ministries are reviewing the new accommodations carefully," Windham wrote.

What about Catholic schools?

"We are studying the most recent White House effort to see if it aligns with RFRA [the Religious Freedom Restoration Act], and will continue to confer with legal experts on the potential effect of the accommodations on our nation's Catholic colleges and universities," Michael Galligan-Stierle, president of the Association of Catholic Colleges and Universities, said in a prepared statement.

American Catholic leaders noted disappointment with the new rules, hoping for a general broadening of the exemption, instead of more codification.

"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," Archbishop Joseph Kurtz, president of the U.S. Conference of Catholic Bishops, wrote in an Aug. 22 statement.

Windham said the government could have avoided this fight. "Where each individual ministry draws the moral line may vary, but the government could have avoided all of this by simply offering religious objectors the same exemption offered to churches."

"Since plans covering tens of millions of people are fully exempt for secular reasons," she wrote. "The government has little reason not to offer a narrow exemption to religious ministries serving those in need."

As to where the new rules fit into the big picture, the situation -- like the practical effect of rules themselves -- remains uncertain. But the heated response of some provides a clue.

"The latest government 'accommodation' ... is just as inadequate as all the others," Philadelphia Archbishop Charles Chaput wrote in a strongly worded column on the archdiocesan website Aug 28.

In Pennsylvania, the Philadelphia archdiocese and its Catholic Charities agencies, as well as the Pittsburgh and Erie dioceses, are challenging the mandate in court.

"Here at home, the HHS mandate fight will now be decided in the courts," Chaput wrote. "But in the long run, as a nation, we'll get the measure of religious liberty we deserve based on the kind of people we elect to federal office -- something to remember in an election year."

[Vinnie Rotondaro is NCR national correspondent. His email address is vrotondaro@ncronline.org.]

A version of this story appeared in the Sept 12-25, 2014 print issue under the headline: HHS tries new round of rules.

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