Administration again tweaks Obamacare contraception mandate

Excerpted from "Administration offers new tweak to birth control rule," Washington Post, August 22, 2014 - The Obama administration, still facing legal challenges to its requirement that employer health plans provide no-cost birth control to female employees, outlined a new policy Friday to ensure that female workers at religiously-affiliated nonprofits can still receive contraception, even if their employers object. The administration also intends to offer a similar work-around to for-profit businesses after the Supreme Court's bitterly debated 5-4 decision in June that owners of closely held firms could refuse contraception coverage if it conflicts with their religious beliefs.

The new federal guidelines address a set of ongoing legal challenges to the contraceptive requirement raised by dozens of religious nonprofit groups, such as hospitals and charities, that could again put the contraception mandate before the Supreme Court. The religious nonprofits are challenging the administration's already existing opt-out, in which the groups can ask a third party to provide the contraception coverage to their employees. However, the nonprofits say that filling out the form notifying the third party violates their religious beliefs.

The nonprofits can now directly inform the Department of Health and Human Services of their religious objections. HHS and the Labor Department will then coordinate contraception coverage with insurers and third party administrators. The nonprofits still have the option to notify a third party directly.

The Becket Fund, a law firm that represents 126 nonprofit plaintiffs ranging from evangelical Wheaton College to Catholic University of Notre Dame, said Friday afternoon it hadn’t yet seen the full text of the rule and thus couldn’t comment on its specifics. Several of the country’s biggest faith groups on Friday said the revised rule was still problematic because it didn’t fully exempt organizations – for-profit or non-profit – with religious objections.

"Here we go again,” said Russell Moore, president of the policy arm of the Southern Baptist Convention, the largest U.S. Protestant denomination. “What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn't get at the primary problem.”

The U.S. Conference of Catholic Bishops said it's worried that the administration's proposal could limit which for-profit businesses can receive a religious exemption.

"By proposing to extend the 'accommodation' to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” the group's statement read.

Commentary

Senior Counsel for the Becket Fund for Religious Liberty Lori Windham’s Statement: "This is latest step in the administration’s long retreat on the HHS Mandate. It is the eighth time in three years the government has retreated from its original, hardline stance that only 'houses of worship' that hire and serve fellow believers deserve religious freedom.

"The new rule holds implications for the 102 cases, including religious charities like Little Sisters of the Poor (see video), Mother Angelica’s Eternal Word Television Network (see video) and religious colleges like Colorado Christian University. Ninety percent of religious ministries challenging the mandate have received relief from the courts, and we are hopeful the administration’s new rule will reflect the robust protections that have always been given to religious individuals in this country.

"Religious ministries in these cases serve tens of thousands of Americans, helping the poor and homeless and healing the sick. The Little Sisters of the Poor alone serve more than ten thousand of the elderly poor. These charities want to continue following their faith. They want to focus on ministry—such as sharing their faith and serving the poor—without worrying about the threat of massive IRS penalties."

Action

1. Urge your U.S. senators to support (or thank your senator for already co-sponsoring) the Health Care Conscience Rights Act - S. 1204 , to protect religious liberty and preserve patient access by providing conscience protections for healthcare professionals. (Note: You will be provided with editable text based on your senator's sponsorship or non-sponsorship of this bill.)
2. Urge your U.S. Representative to support (or thank your Rep. for already co-sponsoring) the Health Care Conscience Rights Act - H.R. 940.

Resources
Read new HHS rule

CMDA's Freedom2Care website: Freedom of faith, conscience and speech
CMDA's Freedom2Care commentaries in national newspapers
CMDA Freedom of Faith and Conscience resources